“The answer is simple,” said George Freeman, executive director of the Media Law Resource Center. “It was up to the jury.”
Depp was successful in his three counts of defamation against Heard and awarded $15 million, the seven-person jury announced on Wednesday. The jury also decided that Depp, through his attorney Adam Waldman, defamed Heard on one of three counts in his countersuit. She received $2 million.
Depp sued Heard in Fairfax County, Va., in 2019 for defamation over an op-ed published a few months earlier in The Washington Post. Heard did not name Depp in the article but wrote that she was “a public figure representing domestic violence.”
In 2020, Depp lost a similar case in the UK in which he sued the Sun tabloid for calling him a “wife beater”. Libel law has traditionally been more favorable to plaintiffs there, even leading to “libel tourism”, where plaintiffs sue in UK courts to further their case.
So it surprised some when Depp prevailed in the US case, the plaintiffs given here face a much higher bar to prove defamation of a public figure. Under US law, a plaintiff in a defamation lawsuit must prove they were harmed by an entity acting with actual malice, which means they knew a defamatory statement was false when they made it. did.
Mark Stephens, an international media lawyer familiar with both cases, said Depp’s legal team in the United States implemented a strategy known as DARVO – an acronym for deny, attack and reverse the victim. and the aggressor – in which Depp became the victim and heard the aggressor. .
“We find that DARVO works very well with juries but almost never works with judges, who are trained to review evidence,” Stephens said.
Although Heard was not named in the UK case, she gave evidence for several days as a witness called by the Sun. The British judge ultimately ruled that the allegations against Depp were “substantially true”, writing in a 2020 ruling that “the vast majority of the alleged assaults…have been proven to the civil standard”.
Even though the Virginia case had a much higher standard for Depp’s team to meet, “it didn’t impact the outcome because essentially what you have is a jury believing evidence that a British judge didn’t agree, so that’s where the difference here lies.Exceptionally, not in the different legal frameworks.
This could explain why Depp lost in the UK even though he was not required to prove the wife-beater tag was fake. On the contrary, under British law, the publication had to prove that Depp was, in fact, a wife-beater.
“If Depp had filed the same case here in the United States, it would be up to him to persuade the jury that the charge was false,” said Lee Berlik, a Virginia-based attorney who specializes in libel and litigation. commercial.
The distinction is important because in cases where there is evidence on both sides and the jury cannot determine which party is telling the truth, the party with the burden of proof loses. “It is remarkable that a judge in the UK found that The Sun had proven 12 separate acts of ‘wife battering’ by Depp, but in Virginia a jury found essentially no acts of domestic violence and that the claims Ms. Heard’s contraries were basically a “hoax,” Berlik added.
Depp sought to have the case heard in Virginia, which has a relatively weak anti-SLAPP status, rather than in California, where he and Heard both reside. Such laws – the acronym stands for Strategic Public Participation Prosecutions – offer defendants a quick way to have baseless lawsuits dismissed. Heard asked for Depp’s lawsuit to be dismissed, but was unsuccessful.
The other difference between the two cases is the chaos that unfolded online outside of the courtroom. While the UK case garnered outrageous media coverage, the trial in Virginia took it to another level. The trial was broadcast live, millions of people tuned in and dissected the testimony on social media. “Saturday Night Live” even ridiculed him.
Although the jurors were ordered not to read the case, they were not sequestered.
