It seems like a long time since the libel trial of the decade (between Johnny Depp, News Group Newspapers Ltd, and the Sun’s Executive Editor Dan Wootton) filled endless newspaper pages and social media feeds back in July. And now we have the Judgment, which comes down firmly on the side of The Sun and Dan Wootton.
By way of background, in April 2018 The Sun published an article written by Dan Wootton under the headline: ‘GONE POTTY How Can J K Rowling be “genuinely happy” casting wife beater Johnny Depp in the new Fantastic Beasts film?’.
As a result of being labelled a ‘wife beater’, Depp issued proceedings against NGN and Dan Wootton in June 2018. Following 2 years of legal wrangling, procedural matters and Covid-19 related delays, the case gave us two weeks’ worth of outrageous headlines and intense cross-examination in July.
The Defendants defended the case on the basis that the allegation that Depp was a ‘wife beater’ was true, under S.2 of the Defamation Act 2013. Mounting such a defence will cause a sharp intake of breath from most media lawyers. Why? Because it is notoriously difficult and rarely used as a sole defence at trial. Most libel cases settle or are discontinued well before they see the inside of a court room, and it is rare to see a case defended to trial full-stop, let alone with ‘truth’ as the sole defence.
When employing a ‘truth’ defence, the defendant has to prove that the “imputation conveyed by the statement complained of is substantially true”. This means that the defendant does not have to prove that every detail is true, just that the main sting of the statement is true.
As libel is a civil matter, the evidential threshold which must be met is that of “balance of probabilities” – so, is it more likely than not that the Claimant did what the articles allege? The Court must also take into account the seriousness of the allegation, and the more serious it is, the stronger the evidence must be in order for the Court to decide that it has been proven.
It was not of direct relevance to this case, but it is worth noting that the ‘truth’ defence is a complete defence to a claim for libel, so it cannot be undermined by malice on the part of the Defendant.
In this case, Mr Justice Nicol decided that 12 of 14 alleged incidents of violence by Depp, against his then-wife Amber Heard, had been proven. Therefore the Defendants had successfully defended the claim, and Depp lost the case. Depp’s lawyers have indicated that he will appeal the judgment.
Although the truth defence was successful here, great care needs to be taken when considering publishing a defamatory article with the intention of relying on a truth defence. As we saw in July, a huge number of witnesses were required in order to utilise the defence successfully, and those witnesses had to be capable of standing up to intense cross-examination and pressure.
Aside from the evidential issue, defending libel cases is a costly business and to be willing to run a truth defence to trial you have to consider the commercial side, the potential cost implications and the publisher’s appetite for risk. If you are unsuccessful at trial not only do you have to pay your own legal costs, but also the reasonable legal costs of the Claimant, and damages. The figures are truly eye-watering.
What does this ruling tell us? Truth can be used successfully as a defence in a libel trial. But it should be used with caution, and then only if you have the evidence to support it.
Knowing the truth of your article is one thing; proving it, unfortunately, is something else entirely.