Defamation and the #metoo movement

For the past two years, the #metoo and #TimesUp movements have seen increased media coverage of allegations of harassment and abuses of power. The rise in public allegations of serious misconduct comes with a rise in defamation suits against the individuals making the allegations.

In the U.S., one of the more high-profile defamation cases to arise out of sexual violence accusations involves Hollywood celebrities Johnny Depp and Amber Heard.

The two actors married in 2015 and Ms. Heard filed for divorce in 2016. Ms. Heard obtained a temporary restraining order (“TRO”) against Mr. Depp a few days later and court documents related to the TRO application reportedly stated Mr. Depp was physically and emotionally abusive. Ms. Heard eventually withdrew the application and the parties reached a private agreement.

In 2018, Ms. Heard published an op-ed piece in the Washington Post titled, “Amber Heard: I spoke up against sexual violence—and faced our culture’s wrath. That has to change.” In the piece, she described receiving death threats and feeling on “trial in the court of public opinion” after details about the TRO and divorce came to light. She did not mention Mr. Depp by name and did not discuss details of the violence she alleged she suffered at his hands.

This year, Mr. Depp filed a $50 million lawsuit against Ms. Heard for defamation in which he alleged his lawsuit “arises from” the op-ed Ms. Heard published. Mr. Depp’s complaint acknowledged that Ms. Heard never explicitly referred to Mr. Depp but stated the piece “depended on the central premise that Ms. Heard was a domestic abuse victim and that Mr. Depp perpetrated domestic violence against her.” Mr. Depp’s complaint went on to say that “[t]he op-ed’s clear implication that Mr. Depp is a domestic abuser is categorically and demonstrably false” and the allegations against him “were part of an elaborate hoax to generate positive publicity for Ms. Heard and advance her career.” The full complaint is available online.

Ms. Heard since moved to dismiss the complaint and alleged in great detail the abuse she says Mr. Depp inflicted.   

Defamation law varies from state to state, but, in general, defamation claims involve a plaintiff alleging someone else made false and disparaging statements about him to others and that those statements harmed the plaintiff’s reputation or otherwise caused him harm.

There are a number of defenses to defamation, however, and nuances in the law and facts often mean defamation claims are not as straightforward as they might appear.

For example, whether the plaintiff is a public figure, and whether the statements at issue involved matters of public concern may determine whether the plaintiff has to prove the statements made about him are false, or if the defendant has to prove the accusations giving rise to the defamation claim are true. These are important legal distinctions that can make or break a plaintiff’s claim. Moreover, judges, not juries, generally get to decide whether a defamation plaintiff is a public figure or whether the defamatory statements published about him involved matters of public concern. And the law controlling these decisions remains vague enough in some jurisdictions to enable judges to justify ruling however they please on these issues.

In Mr. Depp’s lawsuit, both parties, as celebrities, arguably are public figures. In this time of heightened attention on sexual harassment and violence, accusations a celebrity engaged in abusive behavior is a matter of some public concern, especially if that abusive behavior involved alleged conduct that could be considered criminal conduct, such as assaults or batteries. Assuming the allegedly defamatory statements giving rise to the lawsuit are about Mr. Depp and carry the implications he alleges they do, Mr. Depp likely will need to prove two things: 1) that the statements were false they were published, and 2) that Ms. Heard either a) knew they were false when she made them or b) recklessly disregarded whether they were true or false.

If the case is not dismissed, Ms. Heard could be held liable for defamation if Mr. Depp can prove what he alleges in his complaint: that Ms. Heard fabricated accusations of abuse for her own personal and professional gain. Ms. Heard, however, has already suggested that to the extent she made any accusations of abuse, they are true and supported by reliable evidence.

Ms. Heard’s attorney stated, “In light of the important work done by the #TimesUp movement highlighting the tactics abusers use to continue to traumatize survivors, neither the creative community nor the public will be gaslit by Mr. Depp’s baseless blame-the-victim conspiracy theories.”

Meanwhile, Mr. Depp stated his lawsuit is an effort “not only to clear my name and restore my reputation, but to attempt to bring clarity to the women and men whose lives have been harmed by abuse and who have been repeatedly lied to by Ms. Heard purporting to be their spokesperson.”

As the parties already seem to be aware, no matter the outcome, this is case is likely to influence the broader social conversation about sexual harassment and abuse, including discussions on the power of accusations and the cost of coming forward with them.

By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2019. All rights reserved.

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