Depp v Heard,and what is SLAPP litigation/Anti SLAPP?

Currently taking place in the Fairfax County Courthouse, Virginia, US, and with a celebrity witness line-up and livestream, Johnny Depp v Amber Heard is sure to attract the most column inches of any libel case this year.

The case sees Depp suing ex-wife Heard in relation to her 'op-ed' published in The Washington Post, in which she speaks about domestic abuse. Depp has spoken in evidence of the need to clear his name, in relation to the abuse allegations that have plagued him in recent years. Vindication of reputation is the primary objective of any libel trial, but carries with it significant risk given that allegations are opened up for close scrutiny, evidence and publicity.  

Depp has seen one libel case backfire already, having lost his 2018 claim against News Group Newspapers before the High Court in London, in relation to 'wife beater' allegations published in The Sun. He perhaps feels he has nothing to lose this time around.

Two things of interest about this case from a libel law perspective (recognising that it is being tried under US law, however obvious parallels with English law exist).

First, Depp was not named in the op-ed. Which answers again a question we are asked frequently – can you avoid risk of a libel claim by not naming anyone? The answer: no. While under English law the claimant must establish that he/she was identified or identifiable, this needn’t be by name and can be by surrounding circumstances/wider knowledge of the audience. Depp is able to point to the London trial, the allegations that preceded it (which were settled between the parties) and the column inches dedicated to this story over recent years in asserting that the op-ed will be widely understood to be about him.

Second, there has been repeated reference in media reporting to 'Anti-SLAPP' laws; SLAPP being 'Strategic Lawsuits Against Public Participation', a reference to the trend towards oppressive litigation, in abuse of legal process, including defamation claims with the intent of silencing critics/evading scrutiny. Depp is reported to be facing Anti-SLAPP arguments from Heard’s legal team based on US State laws which extend the First Amendment right to freedom of speech and which mean the words in the op-ed were protected. The English parallel to this is the public interest libel defence. Interestingly, the UK Ministry of Justice has also recently turned its attention to the issue with an “urgent call for evidence in response to the challenges presented by the increasing use of a form of litigation known collectively as SLAPPs”, launching an open consultation on this subject (DOP 17 March 2022).

One contributor to this BBC News piece postulated that Depp’s case might well have been thrown out under California’s more stringent Anti-SLAPP laws, had it been brought there. It will fascinating to see how these arguments play out, in particular whether a lawsuit to vindicate a personal reputation undoubtedly seriously damaged by allegations of marital abuse will be determined a SLAPP based on public interest/Anti SLAPP arguments or whether the right to seek vindication of reputation will prevail and whether the fact that the allegations have been before the court once already (albeit in London and in a different context) will have any bearing on the determination.