Amber Heard and Johnny Depp

There is a history of litigation between Amber Heard and Johnny Depp, the latest of which has been turned into what can only be described as a media circus between the former Hollywood couple. The $50 million defamation trial, which was live streamed from a court room in the state of Virginia (USA), has been viewed by millions all over the world over the last few months.In 2018, Heard wrote an op-ed (a special feature in a newspaper) which was published in the December issue of The Washington Post, where she referred to herself as a “public figure representing domestic abuse”. Depp was publicly condemned as a “wife-beater”, and his legal team claimed that this began to impact his personal relations as well as his career as an actor. Most notoriously, Depp was dropped from both the sixth instalment of the Pirates of the Caribbean and the third instalment of the Harry Potter spin-off, Fantastic Beasts.The social media hype, which has been fuelled by severed fingers and 90s supermodel witness testimonies, appears to have been focused on everything but the application of law. It seems that even Heard’s legal counsel was led astray, waiting until their closing argument to impress the importance of the First Amendment.

The United States’ First Amendment

The First Amendment gives the citizens of the USA the right to freedom of speech and the press. This right is coupled with their corresponding duty not to defame or denigrate. Defamation in the USA is divided into two separate civil wrongs – libel and slander, which account for written or spoken defamation respectively.To prove prima facie defamation in the USA, a plaintiff is required to show four things:

1. A false statement purporting to be fact;
2. Publication or communication of that statement to a third person;
3. Fault amounting to at least negligence; and
4. Damages, or some harm caused to the person who is the subject of the statement.

In this instance, Depp had to show that what Heard wrote in The Washington Post op-ed met these requirements, particularly that the contents of the op-ed were a lie (a false statement). Put simply, Heard had to provide a legal defense, for instance, the right to Freedom of Speech.

Related South African law

In section 16 of the Bill of Rights, the South African Constitution protects the right to a persons Freedom of Expression. In terms of this provision, this freedom includes, amongst others, the freedom of the press and the freedom to receive or impart information or ideas. This right is contingent on the limitations set in subsection 2, in so far as it does not extend to the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.In South Africa, the right to the freedom of expression is often coupled with the delictual civil action of liability – the actio iniuriarum. This is where another human is held liable for the violation of one’s personality interest (injury to their person). The actio iniuriarum (the action) is subdivided into three categories, namely:

1. Corpus (bodily);
2. Dignitas (dignity); and
3. Fama (reputation).

The requirements for this delict are as follows:

1. Conduct, either in the form of a statement or positive conduct. In cases of defamation, there is seldom an omission which is construed as conduct.
2. Causation, in so far as there must be a legal nexus (or link) between the conduct of the alleged wrongdoer and the harm.
3. Wrongfulness, in so far as the conduct must be considered objectively unreasonable, and without lawful justification. Lawful justification will be considered a valid defense and the corresponding behaviour determined lawful.
4. Fault, in the form of intention to harm from the alleged wrongdoer (animus iniuriandi). In cases involving the media, fault may be proved either by intention or negligence (where a reasonable person would have foreseen that the conduct would have resulted in the harm).

Comparatively, there is a fundamental difference between the interpretation of defamation in the USA and in South Africa, the former requiring a false statement (a lie) to meet the requirements for defamation. In South Africa, however, the court will consider this when assessing whether the alleged defamer was wrongful in their actions. The Constitutionally entrenched right to freedom of expression should then be addressed in disproving the element of wrongfulness.One could argue that Heard’s counsel had a simpler task than if the case was tried in South Africa. Counsel for both parties in the Depp/Heard case found themselves engrossed in the details of their relationship, and more attention could have been paid in simply addressing the required elements.On 1 June 2022, the seven-man jury found in favour of Depp, concluding that The Washington Post article written by Heard was in fact defamatory and awarding Depp $15million in damages.