In this edition of Ask General Counsel, Johnny Depp helps provide guidance on Virginia defamation law.
Johnny Depp filed a lawsuit in Virginia against his ex-wife, Amber Heard, claiming defamation based on four statements made in Heard’s op-ed in the Washington Post in December 2018.
Depp claimed the op-ed was about “Heard’s victimization” after she accused Depp of domestic abuse in 2016 and based his defamation claims on the following four statements made by Heard:
- “I spoke up against sexual violence — and faced our culture’s wrath. That has to change.”
- “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”
- “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”
- “I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion — and my life and livelihood depended on myriad judgements far beyond my control.”
To make a successful defamation claim, a plaintiff must establish: (1) publication of (2) an actionable statement with (3) the requisite intent. For a statement to be actionable, it must be “false and defamatory.” A statement is defamatory if it “tends to injure one’s reputation in the common estimation of mankind.”
Statements of opinion can’t be “false,” and, thus, can’t be actionable. In light of that, editorials or op-eds are typically not actionable, since they are in a section usually considered to be personal viewpoints. However, Virginia courts have found that “a defamatory charge may be made by inference, implication, or insinuation” and may be made indirectly.
The court found the first three statements to be actionable, because they convey the alleged defamatory message that Depp abused Heard, even though the article did not mention Depp by name. The court also considered events surrounding Depp’s and Heard’s divorce, including Heard’s “multiple allegations of domestic violence,” which accompanied her statements.
Additionally, the court found that the implication that Depp abused Heard “is defamation per se” since it imputes to Depp “the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.”
The court concluded that because the statements could reasonably be seen to convey an alleged defamatory meaning– that Depp abused Heard — and the meaning is defamatory per se, the statements could proceed beyond demurrer and Depp could proceed with his claims.
The court determined the last statement wasn’t actionable, because it “lacks any factual underpinning” that Depp abused Heard. Specifically, the court found that the statement was “too opinion-laden,” represented Heard’s own perspective, and lacked any implicit reference to alleged abuse by Depp. Thus, the court determined there was no defamatory charge and wasn’t actionable.
What Does Depp v. Heard Mean for Defamation Claims?
Here, the court offered guidance on which allegedly defamatory statements are considered “actionable” and may be instructive for other, similar cases. This case also shines light on Virginia’s relaxed defamation standard. The court found these statements to be actionable, since they convey the alleged defamatory message that Depp abused Heard. All three statements, at least indirectly, referenced alleged abuse by Depp, when viewed with the events surrounding the statement.
Conversely, the last statement, which the court found wasn’t actionable, made no reference to any alleged abuse, even indirectly, and instead was just Heard’s perspective of her life after becoming a “public figure.”
If you have questions about defamation, contact an attorney at General Counsel, P.C. at firstname.lastname@example.org or 703-556-0411. For more information on defamation law, visit General Counsel, P.C.’s Defamation Litigation practice area page.