The truth, pure and simple, as a defence to defamation claims after Depp v NGN

Johnny Depp, Amber Heard, Sun masthead, all pix via wikipediaThe truth, as Oscar Wilde has Algernon Moncrieff remark to Jack Worthing in Act I of The Importance of Being Ernest, is rarely pure and never simple. Nowhere is this more evident than in a defamation courtroom. At common law, the defence of justification to a claim for defamation averred that the words complained of, in their natural and ordinary meaning, were true in substance and in fact. For example, in Irving v Penguin Books Ltd [2000] EWHC QB 115 (11 April 2000), American historian Deborah Lipstadt estabished that holocaust-denier David Irving had deliberately distorted evidence relating to the Holocaust, and thus successfully relied on the defence of justification to defeat Irving’s claim of defamation. In Ireland, the common law has been replaced by section 16(1) of the Defamation Act 2009 (also here), which provides that the defence of truth is made out where the defendant proves “that the statement in respect of which the action was brought is true in all material respects”. In England, the equivalent statutory provision is much more straightforward: section 2(1) of the Defamation Act 2013 provides that it “is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true”. In both jurisdictions, the common law defence of justification has been abolished (section 15(1) of the Irish Act (also here); section 2(4) of the English Act); and, in both, the replacement is called the defence of truth (section 16(1) of the Irish Act; heading to section 2 of the English Act). It is an interesting question whether proving truth “in substance and in fact” at common law is a different standard to either of the statutory standards; indeed, given that the wording of the statutory provisions is different, it is an equally interesting question whether they embody equivalent or divergent standards.

Section 2 of the English Act was at the heart of the judgment of Nicol J in Depp v News Group Newspapers Ltd [2020] EWHC 2911 (QB) (02 November 2020) (perceptively noted by Kirsten Sjøvoll and Alexandros Antoniou in separate posts on Inforrm’s blog, by Clare Duffy and Claire Overman in a post on Doughty Street Chambers Insights blog, and by Tom Tom Bennett and Colette Allen on the Media Law Podcast; and Inforrm has added a post summarizing the online response to the case). A headline in The Sun newspaper, published by the defendants, referred to actor Johnny Depp as a “wife beater”, and the accompanying article referred to “a detailed history of domestic abuse incidents” and “assaults” by him on his wife at the time, fellow actor Amber Heard. There was essentially one allegation here, that Depp was a wife-beater; he sued The Sun for defamation, and the newspaper pleaded truth pursuant to section 2, seeking to rely on fourteen incidents to establish the truth of the allegation.

Nicol J held that the burden of proof of the defence of truth under section 2 rests on the defendant (as it had done under the common law defence of justification), and that, since it was a civil claim, the standard of proof is the balance of probabilities. Presumably the same logic applies to section 16 of the Irish Act. In Depp v NGN, after a detailed consideration of the evidence in respect of all fourteen of the alleged incidents, Nicol J held that the defendants had established the truth of eleven of them, and part of a twelfth. And he held that the defendant’s inability to establish the truth of two of the incidents, and part of a third, did not prevent him from finding that they had established the substantial truth of the words that they published in the headline and article in The Sun.

Nicol J held that establishing the truth of eleven or twelve of fourteen examples demonstrated that the headline and article complained of were “substantially true” for the purposes of section 2 of the English Act. It is worth considering whether establishing eleven or twelve of fourteen examples would demonstrate either that the headline and article were true “in all material respects” for the purposes of section 16 of the Irish Act, or that they would have been true “in substance and in fact” for the purposes of the old common law defence of justification. It is much easier to see how the facts as found by Nicol J satisfy the terms of section 2 of the English Act than it is to see how they satisfy the terms either of section 16 of the Irish Act or of the former common law.

The facts of Depp v NGN relate to a single allegation, where several incidents are pleaded to establish the truth of that allegation, and some but not all of the incidents are established. This differs from the defence provided by section 2(3) of the English Act and section 16(2) of the Irish Act, where there are several allegations, and some but all of them are not proved, but those that “are not shown to be substantially true do not seriously harm the claimant’s reputation (s2(3)) or “do not materially injure the plaintiff’s reputation having regard to the truth of the remaining allegations” (s16(2)). Nicol J’s approach effectively equiparates the two situations. As a matter of policy and logic, this parity of reasoning must be right. And this in turn suggests that, on facts similar to Depp v NGN, section 16(1) of the Irish Act should be interpreted to reach the same conclusion that Nicol J did in respect of section 2(1) of the English Act. Like the truth, these provisions are neither pure nor simple, but Nicol J made an excellent fist of section 2 in his judgment in Depp v NGN. It is to be hoped that, a similar reading of section 16 of the Irish Act will follow in an appropriate case.

Meanwhile, and unsurprisingly, Johnny Depp’s lawyers say that they are considering an appeal of what they describe as a “perverse and bewildering” judgment. This one will run and run.