What does Johnny Depp need to prove to win his case against Amber Heard?

As a public person, Depp has to show evidence of ‘actual malice’ on Heard’s part

Clémence Michallon
Tuesday 03 May 2022 17:53
Depp v Heard trial: Most dramatic moments so far
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The defamation trial opposing Johnny Depp and Amber Heard in Virginia has reached its halfway mark.

Depp sued Heard, his ex-wife, in March 2019, over an op-ed she wrote in 2018 for The Washington Post, titled: “I spoke up against sexual violence — and faced our culture’s wrath. That has to change.” In the piece, she refers to herself as “a public figure representing domestic abuse”.

Depp isn’t mentioned by name in the piece, but he has alleged it defames his character.

“The op-ed depended on the central premise that Ms Heard was a domestic abuse victim and that Mr Depp perpetrated domestic violence against her,” his complaint alleges in part, calling the claim of domestic abuse “categorically and demonstrably false”.

Since 11 April, a jury has been selected and witnesses, including Depp himself, have been heard at the Fairfax County Courthouse in Virginia.

The trial is expected to last for a total of six weeks. Depp and Heard’s respective legal teams will deliver their closing arguments, and a jury will deliberate to reach a verdict.

Three weeks of proceedings have elapsed, and three remain to take place.

Here is what you need to know about the case moving forward:

What type of case is this and what is a stake?

The defamation case opposing Depp and Heard is a civil case.

This has a few implications. First of all, the complaint was brought by Depp himself. In a criminal case, the government would bring a case forward.

The standard of proof is also different in a civil case. In such a case, the plaintiff must show their claims are true as reflected by a “preponderance of the evidence”. This is a lower standard than that in a criminal case, which requires the government to prove a defendant’s guilt “beyond a reasonable doubt”.

Neither Depp nor Heard is facing criminal charges in this case, nor are they facing any sort of criminal sentence such as imprisonment.

In a civil case, it’s up to the plaintiff to ask the court for the resolution they seek. This can be, as outlined by the Civil Law Self-Help Center, a nonprofit legal help center based in Nevada, monetary damages, an injuction preventing someone from doing something or forcing them to take specific action, or a declaratory judgment clarifying the parties’ rights.

Depp has asked for compensatory damages of “not less than” $50m, and punitive damages “to the maximum extent permitted” by the law and “no less than $350,000”.

What must Johnny Depp’s team prove in order to win?

Depp’s complaint lists three counts of alleged defamation on Heard’s part: one for the print edition of the op-ed, one for its online edition, and one for when Heard tweeted the op-ed.

Depp is a public figure. In the US, public figures have a heavier burden of proof when it comes to winning a defamation case: they must show the defendant (in this case, Heard) acted with “actual malice”.

That standard dates back to the landmark New York Times Co v Sullivan Supreme Court case, which was decided in 1964.

“Actual malice for defamation law purposes means that the statement was made either with knowledge that it was false or with reckless disregard as to whether or not it was false,” Lili Levi, professor of law and dean’s distinguished scholar at the University of Miami School of Law, told Poynter for a piece about the Depp v Heard case and what it might mean for media law.

Daniel Gutenplan, an entertainment litigator, defamation expert, and a partner at Enenstein Pham & Glass, told People Depp is facing “an uphill battle” in meeting that standard of proof, adding that “defamation is very hard to prove”.

Who’s a plaintiff and who’s a defendant?

Depp is the original plaintiff in the case, and Heard is the original defendant.

Heard counter-sued Depp in August 2020, accusing him of allegedly orchestrating a “smear campaign” against her and describing his own lawsuit as a continuation of “abuse and harassment.”

In the context of the countersuit, Depp is a defendant and Heard is a plaintiff. Both Depp and Heard have therefore occupied both statuses throughout the case.

Heard has asked for a declaratory judgement granting her immunity against Depp’s claims, arguing that the op-ed regards “matters of public concern” protected by the First Amendment.

Her complaint lists a count of “defamation and defamation per se” (defamation per se applies to statements that “are so obviously and naturally harmful to a person’s or business’s reputation on their face that proof of injury to the plaintiff’s reputation may be presumed”, per attorneys Peter Lubin and Patrick Austermuehle).

It also lists a count of violation of the Virginia computer crimes act, which proscribes “harassment by computer”.

Heard has asked for compensatory damages of “not more than” $100m “(her countersuit specifies this is “twice the amount asserted” by Depp against Heard). Like Depp, she has asked for punitive damages “to the maximum extent permitted” by the law, and not less than $350,000.

Heard is also a public person, therefore the same standards of proof apply to her as far as defamation claims are concerned.

Depp’s complaint can be read in full here.

Heard’s countersuit can be read in full here.

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