“It’s….....a defamation claim”

Published on
6 min read

This year has given rise to two blockbuster defamation claims being played out in the public eye on a global scale.

As we have mentioned previously defamation claims remain prevalent in our courts. In the (arguably unlikely) event that you are not aware of the Vardy v Rooney and Depp v Heard cases:

Vardy v Rooney

Rebekah Vardy is suing Coleen Rooney for libel (defamation in a permanent format such as print/a social media post, as opposed to slander which is in a more transient form such as speech). This claim follows on from the “Wagatha Christie” saga - a “sting” carried out by Rooney to discover which of the followers of her private social media accounts had been seemingly leaking her information to The Sun. It culminated in Rooney pronouncing to the followers of her public social media accounts the now infamous line: It’s ………. Rebekah Vardy’s account. 

The trial itself has been full of twists, turns and allegations reminiscent of a Poirot novel. Plot twists included Vardy’s agent potentially being lined up to take the fall, a destroyed laptop, a mobile phone being lost in the North Sea, and accusations of systematic destruction of data and lying under oath. 

After some explosive evidence and cross examination, we are now at the end of a seven-day trial and  await Mrs Justice Steyn's judgment in the coming weeks.

Depp v Heard

Johnny Depp has issued proceedings in Virginia, USA against his ex-wife, Amber Heard, alleging that she defamed him in an article for The Washington Post in December 2018. In the article Heard complained of being a public figure representing victims of domestic abuse and experiencing institutions protecting men accused of such abuse. Interestingly, although Heard’s article did not name Depp, it is argued to have contained sufficient information for its readers to easily understand that she was referring to him and thereby making him identifiable.

Depp has alleged that the article in question has caused him substantial financial losses and has damaged his ability to make a profit from his vocation. The star-studded witness list coupled with the ability of the American public to watch the live stream of the trial has inevitably drawn a huge amount of interest to the case. 

But what are the components of a defamation claim?

The legal framework for defamation claims is largely contained in the Defamation Act 2013 (with some of the 1996 Act remaining in force). There are some fundamental components that a defamation claim must show in order to succeed. For example, Vardy must show that:

  1.  

Rooney’s post was published to a third party

Check – the Instagram post was published on Rooney’s account and – at the time of posting – Rooney had over 750,000 followers on her Instagram alone (the post was also published to Rooney’s Twitter and Facebook accounts)

  1.  

The post Rooney published has (or is likely to) reduce Vardy’s standing in society

Check – the statement was highly critical and alleged that Vardy had been leaking information that Rooney had published on her private Instagram account to The Sun.

As with most defamation claims, there has been some debate as to the meaning of Rooney’s post. Meaning was determined (in Vardy’s favour) early on.

The defamatory meaning is a key point that will often be a turning point in such claims and the courts expect this to be determined early on if there is a dispute about it. For more information see our previous article: The determination of defamatory meaning in a digital era

  1.  

She has suffered “serious harm” as a result of the publication

Vardy has alleged that she has suffered “serious harm to her reputation”, along with distress and upset, and has been subjected to “public abuse and ridicule on a massive scale”.

It would, therefore, appear that Vardy has presented a relatively strong claim. However, Rooney is seeking to defend Vardy’s claim by arguing that: (1) the statement she made was true (i.e. that Vardy was leaking information about Rooney to the press), and/or (2) she reasonably believed that it was in the public interest for her to expose Vardy as the leak.

Similarly, although Depp has issued his claim in America and the claim is therefore governed by different law, if Heard can prove that the allegations of domestic abuse in her article were accurate, the Depp’s claim for defamation will fail.  

It will be interesting to see how the judge will determine the following issues in the Vardy v Rooney case:

  • What if the real leak was Vardy’s agent? Will the judge find that the agent acted with Vardy’s authority (express or implied) meaning Rooney must succeed in her truth defence?
  • The burden of proof in this civil claim is on the balance of probabilities. To what extent will the judge draw adverse inferences given the vast amounts of lost evidence?
  • Damages: in defamation claims, damages can be dramatically reduced based upon the Burstein plea forwarded by Rooney. Even if Vardy wins her libel claim, her damages could be reduced to a nominal amount due to the fact Rooney has adduced evidence that stories were previously leaked to The Sun (see Burstein v Times Newspapers Limited).
  • Costs: costs will follow the decision, but the court has a wide discretion in this regard and with costs reported to be in excess of £2 million, it will be interesting to see what the judge orders.

OK, I think I have been defamed – what do I do now?

  • Act quickly – Time is always of the essence and in most cases, you have one year from the date of publication to bring your claim; this rule is largely strictly applied. This can be particularly troublesome for defamation claims as, due to the “single publication rule” (a rule unique to defamation law), even if the defamatory statement is published in a series of posts or articles, the year to issue a formal claim will mostly start running from the date of the first publication.
  • Keep records – In order to support your claim, you will need to preserve evidence of defamatory material and closely check the extent of circulation. The more followers / readers / listeners etc. that the publication has, then generally speaking the more damage it is likely to do and, potentially, the stronger your claim that you have suffered serious harm. You should also keep records of any republication. Interestingly, a post to one follower could be defamatory if it conveys an extremely high defamatory meaning.
  • Kick off your crisis response – If you are likely to suffer serious harm as a result of a defamatory statement, having a pre-prepared list of contacts and a crisis response plan is vital. It may mitigate reputational harm and manage any crisis if you are quickly able to assemble a team of reputation management specialists – which may include a PR consultant, communication consultant and specialist defamation lawyers.
  • On the flip side, to avoid defamation claims, post with caution…!

We intend to publish a further comment once judgment in Vardy v Rooney is delivered. In the meantime, please do get in touch with Abaigh Compton or Rachael Somerset if you have any questions.

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