Anyone with even the most rudimentary exposure to popular culture and current events will have some understanding of the Depp v Heard trial. This trial has dominated the media for the last six weeks. This highly publicised and high-profile defamation case is one of the most significant civil matters to play out in the public area in decades. The question many people have is what exactly is defamation, how does it differ from a criminal trial and what exactly must be proved in such a matter?


Defamation v Criminal Trials Explained

Simply put, defamation is the act of damaging a person’s reputation. While the widespread publicity of the trial and the subject matter raised by each parties’ legal team my lead a viewer to believe Mr Depp and Miss Heard were undertaking a criminal matter- the truth is, the legal action centred on the claim that Miss Heard’s made defamatory statements in her 2018 articles published in the Washington Post.

Although media attention has focused heavily on submissions from both sides regarding allegations of abuse; it must not be forgotten that the action brought by Mr Depp was civil, not criminal.

Furthermore, due to the celebrity status of the plaintiff, Mr Depp, the legal requirements to prove defamation are altered.  In proving Mr Depp’s case for defamation, his lawyers are required to prove that Miss Heard acted with actual malice. In practice, this means proving either that Miss Heard knew her statements in the article were false; or that she wrote the piece with reckless disregard for the truth. The standards for this trial are markedly different for a figure in the public eye such as Mr Depp, in comparison to a private citizen.

When discussing matters of defamation, it is essential to outline that, as opposed to a criminal trial, a defamation matter is brought by an individual, not by the police or the state. Subsequently, such matters do not lend themselves to criminal sanctions.

Civil matters such as defamation hearings are initiated for an award of damages and in some cases an injunction. Allied to this, it is important to note that the standard of proof for an action in defamation is judged on the balance of probabilities, a standard significantly lower than the criminal standard of beyond reasonable doubt.

What are the Allegations? 

In the Depp v Heard matter; Mr Depp made a claim for $50 million against Miss Heard for defamatory remarks allegedly made in her 2018 Op-ed published in the Washington Post. In this article Miss Heard held herself out to be, “a public figure representing domestic abuse”. One of the core issue of the trial was centred upon the title of Miss Heard’s article. The article in question was entitled “I spoke out against sexual violence- and faced our cultures wrath. That has to change.” It was alleged by Mr Depp’s legal team that although the article did not mention him by name, the article clearly identifies Mr Depp as the perpetrator of such violence. In response, Miss Heard lodged a counter claim against Mr Depp for $100 million on the basis she was defamed by Mr Depp’s lawyer who claimed her abuse allegations were a hoax.

Throughout the trial, each side made countless accusations of abuse against the other. Miss Heard’s legal team advanced the claim that Mr Depp, on numerous occasions, assaulted Miss Heard emotionally, physically, and sexually. Alternatively, Mr Depp’s legal representatives claimed verbal and physical assault was perpetrated against Mr Depp by Miss Heard. The most notable allegation is the now infamous claim that Miss Heard severed Mr Depp’s finger by throwing a vodka bottle at him which shattered causing the loss of the top half of his middle finger during a fight between the couple in March of 2015.

Outside of the claims of abuse forwarded by both parties to the matter; the claim of defamation must be bolstered by an allegation of harm suffered. In Mr Depp’s case, the harm so suffered was loss of opportunity in his career as a result of the allegations; most notably the loss of the Pirates franchise which Mr Depp had been with since its inception.

Issues Before the Jury

In closing arguments, Miss Heard’s team finally raised the Constitutional issue which would, if proven, assist her case. In the closing address Miss Heard’s legal team addressed the jury and presented the argument that; since Miss Heard was being truthful in her Op Ed, she was thereby protected by the first amendment. This argument was objected to by Mr Depp’s team. Ultimately, Miss Heard’s team closed their arguments by asserting that any decision contrary to Miss Heard’s account of events would be dismissive to all survivors of domestic abuse. Alternatively, Mr Depp’s legal team produced the statement, “the case for Mr Depp has never been about money. It’s about Mr Depp’s Reputation.”

Jury Returns Verdict in Favour of Mr Depp

When the jury returned, they found in favour of Mr Depp’s claims on the balance of probabilities. Consequently, he was awarded $10 million in compensatory damages and $2 million in punitive damages. which are capped in the State of Virginia at $350,000.

Conversely, Miss Heard was awarded $2 million in damages for remarks made by Depp’s lawyer regarding Heard’s alleged behaviour relating to a possible crime scene.

Ultimately, Mr Depp is entitled to recover 8.35 million from Miss Heard subtracting the amount owed by Mr Depp to Miss Heard. This matter has served to shine a light on the complexities of defamatory hearings, especially concerning public figures.

Defamation in Australia 

Amongst the fame and fanfare of the Depp v Heard trial, it is important to remember that matters like this are not uncommon before domestic courts. While the media attention afforded to the Depp v Heard trial is unmatched, such cases are commonplace, within our legal system. In Australia defamation laws vary slightly State to State, however, the elements required to prove defamation are largely uniform. In the simplest of terms, defamation is a communication from one party to another, of information that is damaging to the reputation of the third party who, from the communication may be easily identified. The NSW Civil Trials Bench Book offers a broader and  authoritative guide to defamation laws in Australia.

Running parallel to the Depp v Heard matter is the high profile Australian matter of Ben Roberts Smith VC.  The Former SASR solider and the most decorated member Australia’s Defence Force is currently undertaking his own claim of defamation. The action was  brought by Mr Roberts-Smith against three newspapers over the publication of allegations that he was responsible for the perpetration of war crimes while serving in Afghanistan. This matter is ongoing and, while it may not be as topical or as publicised as the Depp trial. It is a matter which is likely to shape the understanding of Defamation in Australia and an opportunity for the Federal Court to provide analysis and guidance on the subject. 

If you or someone you know needs legal advice or representation for a criminal or traffic law matter, contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.

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Written By
James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia