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February 24, 2021updated 25 Feb 2021 10:27am

Was 2020 the year that libel died?

By Arun Kakar

The calamitous consequences of Johnny Depp’s attempt to sue the Sun should serve as a cautionary tale for would-be litigants 

When a High Court trial features – among other things – blood scrawled on a mirror, defecation in a bed and a severed finger, it is inevitable that media attention will be piqued.

When that trial also features two Hollywood A-listers and takes place in the full view of a bored public trapped in lockdown, then you have the ingredients for a sensation.

For three weeks last July, Johnny Depp’s libel case against News Group Newspapers churned away – generating more and more of the very thing that he sought to avoid: bad press.

The Pirates of the Caribbean actor had taken exception to an article in the Sun that called him a ‘wife beater’ and claimed he assaulted his ex-wife, Amber Heard.

It is hard to think of a celebrity trial this century that has produced as many shocking revelations and lurid details.

The details of Depp’s tumultuous marriage with Heard were laid uncomfortably bare as everything from text messages to intimate photographs was shared and subsequently devoured by the global press.

Worse still for Depp, of the 14 alleged assaults against Heard in open court, 12 were found by the judge to be proved to the balance of probability. The Sun article was deemed ‘substantially true’. Depp has also been refused permission to appeal.

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From a reputational standpoint, the decision to try to sue the Sun’s parent company was puzzling, according to many of the experts Spear’s spoke to.

‘I think it’s a fairly uncontroversial statement to say that it’s not in anybody’s interest to have lawyers forensically pick over the break-up of a relationship,’ says Mark Stephens, a partner at Howard Kennedy whose previous clients have included Julian Assange. ‘Nobody, at the end of a relationship, shows themselves off to their best advantage. There’s all sorts of stuff going on in the marriage, which is best dealt with privately in family proceedings, but certainly not in the public glare of libel proceedings.’

The best reputation lawyers for high-net-worth individuals

The best reputation managers for high-net-worth individuals

What happened with Depp is precisely the sort of predicament that reputation lawyers warn clients of when they are considering court action.

As the trial went on, the ruling itself would seem less and less important: no matter what the result of the case was, the reputational scars would be lasting. Despite these risks, defamation cases (which include slander as well as libel) have seen a recent surge in popularity.

According to Ministry of Justice figures, the 323 defamation claims filed in London in 2019 was the highest in the last decade – 127 per cent higher than 2013.

Many attribute this rise to the Defamation Act of 2013, which required trials to be without a jury unless ordered, making the process much faster and more attractive to claimants.

But, as Depp’s case illustrates, the 2013 Act has had mixed consequences, particularly for high-profile litigants.

‘All it’s done is dramatically increase legal costs and put them completely out of proportion with the damages,’ says Paul Tweed, a partner at Gateley Tweed whose clients have included Sylvester Stallone and Britney Spears.

Tweed was one of the ‘lone voices’ campaigning against the implementation of the Act in 2013 and, in his view, libel courts have since become the domain of those who can ‘afford not only to prosecute the case, but also to take the risk of losing, as Mr Depp will testify to’.

Indeed, despite the attendant risks, high-profile libel and privacy cases abound in British courts.

Meghan Markle has launched a privacy case against the Mail on Sunday, Brexit campaigner and entrepreneur Arron Banks plans to take on the journalist Carole Cadwalladr in a libel suit, and footballer’s wife Rebekah Vardy is expected to go head-to-head with fellow ‘Wag’ Coleen Rooney after the ‘Wagatha Christie’ saga of 2019.

HNWs and high-profile people will continue to take up libel cases for ‘time immemorial’, says David Engel, a partner at Addleshaw Goddard.

On the morning of his conversation with Spear’s, Engel reveals that he has just been instructed to issue proceedings, but he notes that set-piece libel proceedings are perhaps a ‘less important part of the mix’ in contemporary reputation management than they were a decade or two ago.

This is because entering into proceedings is now a part of a wider set of prescriptions, which includes, most notably, privacy and data protection.

The latter two, Engel says, are often ‘much more potent weapons in the armoury of the reputation lawyer than libel’.

This is particularly true at what’s referred to as the ‘pre-publication stage’ – before revelations or accusations actually make it into the public domain. Whereas libel cases can be defended on the grounds that claims are true, this is not enough to derail privacy cases, which are concerned with situations where a ‘reasonable expectation’ of privacy can be established.

This might cover information about the health or sex life of a high-profile individual, where ‘the public interest’ would have to be established in order to justify publication.

‘Broadly speaking, in defamation, you can’t stop it being published beforehand, but in breach of privacy and breach of confidence, you can prevent publication before the event,’ Engel adds.

Taking a libel action requires ‘extreme caution’, says Tweed, who reports a ‘dramatic’ increase in the number of false claims making their way into little-known online titles and being disseminated on social media.

Often these can have a material impact on a client.

For instance, if a term such as ‘money laundering’ is used next to one’s name, it can affect their relationship with a bank that uses software to scour the web as part of its due diligence checks.

Defamation is just one part of the mix when it comes to tackling these, says Tweed: ‘We are approaching the malicious information cases on the basis of defamation, malicious falsehood and misuse of data.’

One of the factors that meant Depp faced an uphill struggle in his case, says one prominent solicitor, is that ‘wife beating’ is a criminal offence. This gave the newspaper a ‘pretty watertight’ claim to be reporting in the public interest, making a privacy suit unviable.

And, of course, according to the ruling, there was truth in the Sun’s claims.

The same solicitor suspects ‘the client might not have been upfront with his lawyers about what the truth of his position was’.

Although Meghan Markle’s privacy case against the Mail on Sunday has been postponed until October, Stephens believes the move is already an ‘absolute disaster’ for the young royal.

The paper, which is arguing that there was a ‘huge and legitimate’ public interest in publishing a letter from Markle to her estranged father, has been granted permission to use a recent biography of the Duke and Duchess of Sussex in its defence.

At a hearing in September, the publisher argued that the Sussexes had ‘collaborated’ with the book’s authors, which, for Stephens, invites a ‘cross-examination’ of the steps one has taken to cultivate their public persona. It should be avoided at all costs.

‘Nobody wants to see how that sausage is made,’ he says. ‘It’s just a risk you should not be taking. Nobody would have known about how you curated your reputation, how you brought on the alleged attack of her father… it’s not clever.’

The reputation lawyer’s toolkit might have changed, but when it comes to public proceedings, the game remains the same: you will be scrutinised, forensically, and in the open.

The Markle and Depp cases both feature individuals who have been badly hurt and damaged personally, who were insistent on going to trial ‘no matter how much advice there is that is saying you shouldn’t do this’, says Stephens.

Both changed law firms midway through their cases – a sign that the advice they were being given was not what they wanted to hear. The result?

‘They’ve made a drama out of a crisis,’ he says. And that is something that few reputations can easily survive.

More from the Spear’s reputation management briefing 2021

Special Report: Reputation management in the time of cancel culture

The studio tailoring reputation management to generation Instagram

The HNW guide for dealing with blackmail

Andy Coulson: The reputation manager with CV like no other

When defamation cases go wrong

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