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Depp v. Heard: What is Defamation?

Unless you’re sleeping under a rock, you may have noticed a large amount of coverage recently from media outlets regarding the defamation trial between previous spouses, Johnny Depp and Amber Heard. But set the sensationalism aside for a moment. What’s really going on here from a legal standpoint?

In the suit, Depp alleges that he has a cause of action against Heard after she accused Depp of physically and sexually assaulting her on multiple occasions before and during their brief marriage. Depp then sued Heard for defamation after she wrote an op-ed in 2018 in The Washington Post in which she referred to herself as a "public figure representing domestic abuse." It is important to note that she never mentioned Depp by name in the op-ed, but his lawyers argued it was a clear reference to accusations Heard made in 2016 when she sought a restraining order against him.

Illinois defines defamation as a false statement of fact about the plaintiff that was “published,” which means shared with another person and harms the plaintiff's reputation (i.e. lowers the plaintiff in the eyes of the community). However, this trial is taking place in Virginia and Virginia law is being followed. Why Virginia? It’s because the online edition of the op-ed was published via the servers in the county. Heard’s lawyers tried to move the suit to California, but were unsuccessful (Have you watched the trial? Not surprised.)

In Virginia, a person cannot be held liable for publishing a false and defamatory statement alone; rather, depending on the nature of the statement and its subject, the publisher must have known that the statement was false or acted recklessly or negligently in failing to determine the falsity of the statement. This is ultimately what Depp’s legal counsel is trying to prove while Heard’s legal counsel is trying to disprove. Depp's burden is proof by a “preponderance of the evidence”. In other words, he has to prove that it is more likely than not he suffered damages due to Heard’s negligent statements.

So what do you think, if you were on the jury, would you be able to come to a decision? Unfortunately, instances of defamation (or even libel) happen all the time. In some situations, it may even occur in the workplace. No matter the case, there’s a simple solution: don’t make statements that you know are false. Otherwise, you could potentially face legal consequences.

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