Johnny Depp’s career-threatening loss in a libel action against the British tabloid The Sun sends a message to the rich and famous that their money may not hide the truth.
It sends an equally strong message to the media that they need to be able to back up their facts.
Depp sued the publisher and Executive Editor of The Sun over a 2018 article published online with the headline “GONE POTTY: How can JK Rowling be “genuinely happy” casting wife beater Johnny Depp in the new Fantastic Beasts ﬁlm?”. The article made reference to allegations that Depp had been violent towards his former wife, Amber Heard, on a number of occasions.
After a 16-day trial in London’s Royal Courts of Justice, Justice Nicol found that, while not all of the 14 allegations of violence were proven, “the great majority” had been proved to the standard required in civil actions. The standard of proof needed for a truth defence in civil cases is that the material must be proved true “on the balance of probabilities”. This is a lower bar to achieve than the usual criminal standard of being sure “beyond a reasonable doubt”.
However, the judge cited a caveat to that lower standard. Previous cases had found that the evidence required to satisfy it may vary according to the circumstances. In particular, the more serious the allegation or the more serious the consequences, the higher the strength or quality of the evidence that is required before a court will find the allegation proved on the balance of probabilities.
The defence anticipated that requirement. So, too, did the claimant. Evidence was presented in an execrable level of detail.
The judge was satisfied that the defence met the standard of proof in all but three of the 14 alleged incidents.
Although there are differences in the wording of the truth defence in British and New Zealand defamation law, the substance is very similar. Certainly, the British precedents relating to the burden of proof in serious allegations would be likely to be cited here.
It was a win for the media but also a clear illustration of the lengths to which journalists must go to establish fact before making serious allegations – particularly against those with the money and will to litigate.
The media editor of The Guardian, Jim Waterson, described the case as ‘a rarity’ because ‘libel law incentivises publishers to settle before cases reach court’. He said other publishers admired News Group Newspapers (publisher of The Sun) for fighting the case to the end (and running up legal bills in the millions of pounds in process) at a time when financially struggling news outlets tend to settle rather than fight risky legal battles. In this case, an early settlement would have reduced the financial risk but would have had the effect of vindicating Depp.
The financial straightjacket wasn’t quite as tight when I was a New Zealand newspaper editor and we parted with some serious money to fight a number of legal battles on principal. The name suppression of American billionaire Peter Lewis (who was caught at Auckland Airport with cannabis in his possession) springs to mind. Equally, I can recall settling matters where we had our facts wrong. I suspect that today our media would need to have very strong evidence before defending expensive defamation actions in court, rather than seeking settlements. I hope they still have enough in the coffers in those circumstances to stand for truth.
Rupert Murdoch’s papers may have had the money to fight the case, and the evidence to back their claim but they still faced a considerable risk with the truth defence.
The Guardian quoted media law expert David Banks: “Truth has always been a diﬃcult defence – and if you mount it and lose, the consequences are dreadful.”
It could have been undermined by witnesses who failed to impress the court. However, Amber Heard proved an impressive witness in spite of the punishing cross-examination she endured.
In fact, both sides were subjected to punishing cross-examination. Their legal teams took the unusual step of instructed leading criminal counsel to conduct the cross examination of the key witnesses.
The case was like a game of high stakes poker, with each hand painting an increasingly dire picture of their relationship. It was expensive in terms of reputations as well as finances.
New Zealand media should study Justice Nicol’s judgement. It points to the sort of thresholds to which editors should subject stories containing allegations that have the potential to ruin reputations.
In the case of Johnny Depp, The Sun and its executive editor, New Zealander Dan Wootton, did the work. And Warner Bros. has answered the question put to J.K. Rowling in their 2018 headline: In a social media post on Friday, Depp said the studio had asked him to resign from his role as dark wizard Grindelwald in the Fantastic Beasts series, a request he said he “respected and agreed to”.
The Depp case was one of four defeats for British defamation claimants in four days, leading the International Forum for Responsible Media to comment that “the already fading reputation of England as the ‘claimant friendly libel capital of the world’ has suffered what may be a fatal blow”. On that, it would be wise to reserve judgement.
The effect of Covid-19 on journalism
None of us is immune to the effects of the battle against a global pandemic: There have been profound and enduring personal, community and economic consequences.
The Reuters Institute for the Study of Journalism at Oxford University has surveyed 136 news industry leaders to determine its effects on journalism and media organisations.
Part of the survey related to remote working, a status that became the norm for journalists here as in the rest of the world.
The upside: A majority (55 per cent) thought it had made organisations more efficient.
The downside: Only a third felt it had made them more creative and three-quarters believed it made building and maintaining teams more difficult.
Broadcasters were often most keen to get back to their studios and to the intimacy of face-to-face contact with guests, while digital-born companies found it easier to work from home where all the normal tools could be accessed online.
The report highlighted news industry leaders’ concerns over staff well-being and mental health, including exhaustion from too many video calls and a blurred demarcation between work time and personal time. They also expressed concern over the fact that home working setups may vary significantly between staff members and with that the impact on their ability to work effectively. Respondents voiced particular concern for junior staff in flat-sharing setups, as well as people living alone.
Ben de Pear, editor of Channel 4 News in the UK, told the researchers he was concerned about the impact on newsroom culture: “The biggest challenge for a daily news operation is the loss of instant communication which you have in a newsroom and the understanding by everyone why something is being done and how. In addition, the camaraderie and joint purpose, the human contact, the humour and spontaneity are bled dry by lack of contact and by technical interaction”.
Covid-19 is likely to have a lasting effect on newsgathering practices. As a result of their recent experience, more than half said they wanted to go into the office less often than in the past and more than 20 per cent said they wished to do so ‘far less often’.
The survey found many newsrooms were advancing plans to change their footprint to allow for greater work flexibility. Forty-eight per cent said they were actively considering reducing office space. But the report does not believe this spells the end of newsrooms: “An accelerated shift to hybrid newsrooms – with some staff in the office, some working from home, and some on the go – is likely to be a lasting legacy of the coronavirus crisis. Such a model could offer benefits including reduced costs and increased flexibility but will require extensive planning and could be difficult to get right.”
If Covid is used simply as an excuse for yet another cost-cutting exercise, you can put money on media organisations getting it wrong.