The Depp v. Heard trial had been dominating news outlets for the past month. In it, actor Johnny Depp accused actor, and former spouse, Amber Heard of defaming him when she claimed that Depp had abused her over the course of their relationship. Recently, a verdict in the trial had been reached. In this verdict, the jury unanimously found that Heard could not substantiate her claims against Depp and that she knew that her allegations of abuse were false when she published her essay outlining Depp’s abuse in 2018. The jury concluded that Heard acted with actual malice when writing her essay. The result of this case is largely unusual. The fact of the matter is that it is exceedingly difficult to prevail on defamation claims and it is the goal of this article to examine why that is.

In order to prevail on a defamation claim, a plaintiff must satisfy four different requirements. First, the plaintiff must show a false statement purporting to be a fact. In other words, an incorrect statement that is being asserted as true. Second, the statement must be published or communicated to a third person. Third, the plaintiff must show fault that amounts to at least negligence. Lastly, the plaintiff must show that the false statements caused some harm to the person that resulted in damages.

The Depp v. Heard, trial, however, operated on a different standard due to the fact that both actors are public figures. In The New York Times Co. v. Sullivan, the Supreme Court held that in order for a public figure to succeed on defamation claims, the public figure plaintiff must demonstrate that the false statements expressed were made with “actual malice.” In Sullivan, the Court specified that actual malice means that the defendant expressed the false statement with “knowledge that it was false or with reckless disregard of whether it was false or not.” In other words, the defendant making the defamatory statements had to know that the statements they were making were false or should have known that they were false.

Suppose, for example, that a plaintiff asserts a defamation claim against a defendant. The plaintiff has to prove to the court that the defendant knew, or should have known, that the statements made were false. The defendant has several avenues through which to contest it. The defendant could show that she was making a statement of an opinion due to the fact that the statement made must be factual. For example, “I think X is a fool” would be considered an opinion even if X has an IQ of 132. On the other hand, if the defendant were to say, “I think Y beats her children,” and this results in Y losing her job, then the plaintiff could very well succeed on a defamation claim given that that the defendant made this statement recklessly and that it resulted in damages to the plaintiff. 

The defendant could also make a showing that, even if her statements were false or factual, she believed them to be true. The defendant could simply claim that the statement was made due to a certain source that she cited or even researched. That could very well be enough to defeat a defamation claim. Alternatively, the false statement could have stemmed from word-of-mouth; perhaps an individual the defendant worked with communicated the statement to the defendant and the defendant believed it.

There are a several means through which one may defeat a defamation claim. Defamation is exceedingly difficult to show because the plaintiff, in a sense, has to show the court the defendant’s state of mind. As such, the Depp v. Heard verdict is an outlier, not the norm. If an individual believes that they have been defamed, then it is preferable to base that belief on research rather than on a blockbuster.