A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Even those with no interest in popular culture or celebrity life are likely to have heard about the libel claim that actor Johnny Depp is advancing against News Group Newspapers (the publishers of the Sun) and its Executive Editor Dan Wootton. The trial concluded last week and has been widely publicised and reported on around the world. Judgment has been reserved but is expected by the end of September.
Libel cases are often settled before trial, so the fact that Depp reached trial is a relatively rare event. Aside from the public curiosity that the case is attracting, it provides an opportunity to reflect on the legal principles at play with real-life examples.
Depp’s claim is in relation to an article written by Dan Wootton and published by the Sun on their website. The article was entitled “GONE POTTY, how can JK Rowling be “genuinely happy” casting wifebeater Johnny Depp in the new Fantastic Beasts film?”. It refers to Depp as a ‘wife beater’, says that he was violent towards his ex-wife Amanda Heard and criticises author JK Rowling for allowing Depp’s casting in the Fantastic Beats film franchise.
Libel and the Defamation Act 2013
The term “Defamation” covers both libel and slander actions. Libel actions relate to longer-lasting publications, such as those in hardcopy print, in writing or online. Slander, on the other hand, relates to more temporary forms of publication such as spoken words and even in some cases gestures. The Law in relation to libel and slander is set out in the Defamation Act 2013 (the “Act”).
To successfully bring a claim in libel under the Act, a Claimant would need to show:
- That there has been a publication to third parties for which the Defendant is responsible;
- That the publication refers to, or identifies, the Claimant;
- That the publication is defamatory of the Claimant, e.g. it tends to lower the Claimant in the opinion of right-thinking members of society generally;
- The natural and ordinary ‘meaning’ of the words complained of is defamatory. Essentially, the Court will make a judgement as to the single or correct meaning that an ordinary reasonable reader would take away from the publication; and
- That the publication has caused, or is likely to cause, serious harm to the Claimant’s reputation (known as the serious harm test). This is a requirement under Section 1 of the Act. If the Claimant is a body that trades for profit, then serious harm must include serious financial harm.
Issues to be determined in the Depp trial
Some of the requirements are not in dispute between Depp and News Group. The Skeleton Arguments prepared by the parties identified the following issues for the Court to determine:
1. What is the natural and ordinary meaning of the article complained of, and does that meaning meet the ‘serious harm’ test?
It is accepted by the parties that the meaning of the article is, at least, that Depp was violent towards his ex-wife, caused her to suffer significant injury and caused her to fear for her life. However, Depp argues that the meaning also extends to an assertion that he was guilty on overwhelming evidence, that payment of £5m to his ex-wife was compensation for the violence, that the physical violence resulted in him in being subject to a continuing Court Restraining Order and that due to the violence, he is not fit to work in the film industry.
Depp’s legal team will seek to prove that the libel complained of meets the serious harm test under Section 1 of the Act. Depp’s team have sought to rely on the following to show the seriousness of the alleged defamation:
- That domestic violence is heinous and criminal conduct;
- That the article will have been published to an enormous audience, due to the reach of the Sun’s website and newspaper;
- The articles expressly sought Depp’s removal from his role in a major film franchise and are an all-out attack on the decision to cast him in the role; and
- The use of #MeToo and reference to the ‘Time’s Up’ movements, along with the mention of Harvey Weinstein (who has become notorious for having committed numerous heinous assaults on women) seek to associate or liken Depp to the abuse that the movements are campaigning against, along with the actions of Weinstein.
The findings by the Court on this issue will likely impact the level of damages that would be awarded if Depp can show the defamation meets the ‘serious harm’ test and if the Defendants’ defence fails.
2. Whether the Defendants can rely on the defence of Truth under Section 2 of the Act by proving the truth of the statements made in the articles.
News Group is seeking to rely on Section 2 of the Act which provides a defence where a Defendant can show ‘that the imputation conveyed by the statement complained of is substantially true.’ It is for News Group to positively prove the truth of the allegations in the publication in order to benefit from the defence. In civil (non-criminal) cases, parties need to prove their position on the ‘balance of probabilities’. However, in libel claims, the more serious the allegations are, the stronger the evidence needs to be to reach that threshold.
It may be possible for News Group to successfully rely on this defence even if they cannot prove the truth of all the allegations; for example, if those allegations they are unable to prove would not, in isolation, seriously harm Depp’s reputation.
The dispute around the meaning of the article also comes into play here. If Depp’s additional elements of the meaning are accepted by the Court, then there may well be more for News Group to prove to be true.
3. If the Defence fails, what is the size of the award of damages and should the Court order to grant an injunction against the Defendants?
Depp is seeking damages and an injunction against the Defendants. In defamation claims, the damages sought are to compensate the damage caused to a Claimant’s reputation, to vindicate their good name and to compensate them for any distress, hurt and humiliation caused by the defamation itself. Whether an injunction (e.g. to prevent future publication of similar allegations) is appropriate will be down to the discretion of the Court.
The damages awarded in libel claims do not tend to be substantially high when compared to other types of claims and when compared to actions brought in the US. The damages in the Monroe v Hopkins case (relating to tweets alleging Jack Monroe was responsible for vandalising a war memorial) were assessed at £24,000.
Given his eye-watering net worth, many may be asking why Depp has sought to bring such a claim when the potential damages could be so insignificant to him. The trial saw Depp being cross-examined on his use of alcohol and drugs and allegations of violence – even if successful, he is unlikely to walk away with his name entirely untarnished. However, Depp states that he has lost out on work as a result of the unresolved allegations by his ex-wife and this is hardly unsurprising given his profession and the recent high-profile movements against violence and abuse in Hollywood. He seems to see the proceedings as a last-ditch attempt to salvage his name once and for all.
Whilst Depp may have decided that the libel proceedings are the most effective means of seeking to clear his name, this is not always the case for organisations. An important consideration is the attention and publicity that the proceedings themselves may attract.
Even where an organisation is merely seeking to defend themselves through legal action and halt the publication of false and defamatory statements about it (which may also extend to their staff), careful consideration must be had in relation to the potential reputational damage that may arise. Sadly, where the perpetrator is an individual e.g. an ex-employee, ex-tenant or ex-beneficiary, reports of a libel case may interpret the legitimate action as an attack on an innocent individual who was merely expressing their opinion or raising concerns/criticisms. The increase in the use of crowdfunding for legal fees and the speed of online journalism also means that awareness of, and commentary on, libel cases may also extend further than usual. However, dependent on the statements being made, this may be worth the vindication achieved from a successful libel claim.
In addition, it is worth considering whether the perpetrator is likely to have the means to pay any awarded damages and/or legal costs if the claim is successful. If not, then a successful organisation may be substantially out of pocket by the end of the proceedings, which can be particularly expensive given the technical nature of this area of law.
For more information
Defamation is a complex type of claim, and we would recommend seeking advice if you believe that any type of publication is defamatory of your organisation. There may also be other options and strategies to help you engage with and manage situations where defamatory statements are being made.
If you are concerned about any potentially defamatory statements being made against your organisation or you have other reputation concerns, then please contact Amy Callahan-Page.
This ebriefing considers the Government’s proposals for challenges, as set out in Chapter 7 of the Green Paper entitled 'Fast and fair challenges'.
We’re delighted to announce that we have been ranked in the top five national legal advisers in the Top 3000 Charities 2021 directory.
The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
Changing charitable purposes and amending governing documents.
Charity registration financial thresholds.
One of the stated aims of the Green Paper is “to deliver the best commercial outcomes with the least burden on the public sector".
The proposals concerning dynamic purchasing systems (DPS) and framework agreements are the most disappointing aspect of the Green Paper.
Family team partner, Elizabeth Wyatt, is delighted to congratulate Kadie Bennett for attaining Resolution Specialist Accreditation in both children law - private and complex financial remedy matters.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.