Case BriefsForeign Courts

London High Court of Justice (Queen’s Bench): The instant high profile case of libel brought in by well known American actor Johnny Depp against The Sun newspaper, the High Court on appreciation of facts and evidences, decided to dismiss Mr Depp’s claim. Andrew Nicol, J., in his 129-page judgment, observed that, “The claimant has proved the necessary elements of his cause of action in libel; the Defendants have shown that what they published in the meaning which I have held the words to bear was substantially true”. The Court further held that, “It has not been necessary to consider the fairness of the article or the defendants’ ‘malice’ because those are immaterial to the statutory defence of truth”.

Facts and contentions

The 1st defendant is the publisher of The Sun newspaper and also the owner and publisher of the associated website The claim revolves around an article first published on the website on 27th April 2018 with the headline- ‘GONE POTTY: How Can J K Rowling be “genuinely happy” casting wife-beater Johnny Depp in the new Fantastic Beasts film?’. On 28th April 2018 the headline of the website article was changed to, ‘GONE POTTY: How Can J K Rowling be “genuinely happy” casting Johnny Depp in the new Fantastic Beasts film after assault claim?”. The contents of the article on the website however remained unchanged and it was published in the hard copy edition of The Sun.

The solicitors of Mr Depp (the claimant) argued that the natural and ordinary meaning attributed to each of the articles was that – “the claimant was guilty, on overwhelming evidence, of serious domestic violence against his then-wife (Amber Heard), causing significant injury and leading to her fearing for her life”. They further argued that the publication of the articles has caused serious harm to the actor’s personal and professional reputation. Since the article was published in the backdrop of “Me Too” Movement, as a result it is likely to finish the claimant’s career.

Per contra, the defendants relied on the ‘defence of truth’ as per S. 2 of Defamation Act, 2013. As per their pleadings- ‘throughout their relationship the Claimant was controlling and verbally and physically abusive towards Ms Heard, particularly when he was under the influence of alcohol and/or drugs.’ The defendants further presented the particulars of 14 incidents in supporting their defence.

What is “defence of truth”-

While deciding the matter, the Court shed some light on the statutory defence of truth as taken by the defendants.  The ‘defence of truth’ was a common law defence to a claim for libel to prove that the libel was ‘justified’. The common law defence has now found in a statutory form under Defamation Act, 2013. Section 2 (1) of the 2013 Act makes it clear that, it is for the defendant to prove that the libel was substantially true. The burden of proof therefore rests on the defendant.  As for the standard of proof, the starting point is that these are civil proceedings and in civil proceedings the standard of proof is the balance of probabilities.  The Court observed that the points upon which they must judge the defendant’s defence are – is it more probable than not that the article was substantially true in the meaning that it bore; is it more likely than not that the claimant did what the articles alleged?

Observations and conclusion

The Court at length perused the list of incidents presented by the defendants and the claimant’s reply to them. The Court observed that a libel claimant must, in brief, prove that “defamatory material has been published by the defendant of and concerning him and in a form that has a degree of permanence”. It was stated by the Judge that, “the overall purpose of the task which is to decide whether the Defendants have proved the substantial truth of their articles in the meanings which I have found them to bear”. The Court delved into the core of the issue i.e. the dispute between Mr Depp and Ms Heard and perused the details of incidents and ongoing simultaneous court cases in other countries. The Court also considered the evidences brought in by the defendants which included photos, audio recordings and Depp’s own text messages. The Court also noted the claimant’s admission regarding long-term problems with drugs and alcohol during the trial and the impact that these allegations had on Ms Heard’s career.

After examining in detail the evidences etc. the Judge stated that the great majority of alleged assaults of Ms Heard by Mr Depp have been proved to the civil standard. The Court also disagreed with the claimant’s portrayal of Ms Heard as a “gold- digger” stating that, “There were other elements to the divorce settlement as well, but her donation of the $ 7 million to charity is hardly the act one would expect of a gold-digger.” The Judge finally concluding the judgment held that he reached these conclusions having examined in detail the 14 incidents on which the defendants rely as well as the overarching considerations which the claimant submitted.[John Christopher Depp II v. News Group Newspapers Ltd., [2020] EWHC 2911 (QB), decided on 02-11-2020]

Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsForeign Courts

High Court of Justice Queen’s Bench Division Media and Communications List: Warby, J. dismissed a claim for initiating action for libel against a newspaper on the ground that the claim could not be maintained solely on the basis of the impugned heading of article, but the meaning of article must be derived after reading the entire article, instead.

Claimant sued the defendant for operating a website which published an article with the headline – “Two guilty of killing a woman while racing their cars”. The claimant was one of the two racers, who were charged for causing death and serious injury by dangerous driving and were found guilty by the jury, however, he had been acquitted of both the charges, and was convicted for careless driving. Claimant complained that he had been very seriously libeled by the said article. The main issue for resolution was whether the headline reflected the natural and ordinary meaning of the article and did the article mean that the claimant was one of two found guilty of killing a woman while racing their cars.

Counsel for the claimant Mr Sterling submitted that the report provided the implication that there were reasonable grounds to suspect the claimant of offences in question. He complained that the words of the article were clearly defamatory as the ordinary reasonable reader would inevitably perceive that the claimant unlawfully killed the lady, as it did not identify the offences of which the claimant was acquitted and convicted, and the article was also ignorant of any satisfactory antidote for its defamatory sentences. Counsel for the defendant,  De Wilde submitted that claimant could only complain of an imputation that defamed him – the excerpts of the article selected for complaint were internally incoherent and it could be understood from its context that the claimant was acquitted of both the offences of which another driver was convicted.

The Court relied on the decision in Charleston v. News Group Newspapers Ltd., [1995] 2 AC 65 in which the issue was whether the text of a newspaper article would, in any particular case, be sufficient for neutralizing the defamatory implication of a prominent headline. In that case, it was held that defamation would depend on the nature of libel which the headline conveyed and language of the text which was relied on to neutralize it, and also on the manner by which the whole of the relevant material was set out and presented.

Reliance was also placed on Chalmers v. Payne (1835) 2 Cr. M. & R 56, 159 where it was observed that “[If] in one part of the publication something disreputable to the plaintiff is stated, but that is removed by the conclusion, the bane and the antidote must be taken together.”

Thus, the Court opined that meaning of a published article or statement must be collected from the article or statement as a whole. The law does not permit a claimant to sue for damages in respect of a headline, however defamatory, if the headline and article are mismatched, and the impact of the headline is contradicted or neutralized by the remainder of the article.

It was observed that headlines commonly feature in bane and antidote arguments, and quite often there is a disconnect between the headline and body of an article. This is for the reason that headlines are made eye-catching, and a headline can create a libel, even if the text contains none.

In view of the above, the Court held that no reader of the whole article, could reasonably draw the conclusion that claimant was found guilty by a jury for unlawfully killing the lady. Thus, he could not complain of the article’s headline in isolation.  [William Alexander Spicer v. Commr. of Police of the Metropolis, [2019] EWHC 1439 (QB), decided on 07-06-2019]