12 h 16 sept. 2021 ans - THE TIMES Johnny Depp given fresh chance in Amber Heard case

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FROM THE TIMES:

Johnny Depp given fresh chance in Amber Heard case

by Amber Melville-Brown

‘Upholding English libel judgments in the United States would create [a] chilling effect and could create a dangerous precedent.”

So announced Judge Penney Azcarate as she refused Amber Heard’s attempt to strike out Johnny Depp’s Virginia libel claim on the grounds that he had already sued and lost in England.

In doing so, Virginia’s chief circuit court judge vividly illustrated that England and various US state jurisdictions are places divided by what the judge termed “starkly different” libel laws.

She added that “to enforce the UK defamation judgment in this case would go against public policy”.

Depp’s high-profile defeat at the High Court in London this year vindicated News Group Newspapers, which publishes The Sun, after the paper had accused him of being a “wife-beater”. Depp vehemently denies the allegations.

After being refused permission to appeal in London, the Pirates of the Caribbean star turned his attention back across the Atlantic, where he is pursuing a separate action against Heard over an opinion piece she wrote for The Washington Post, which is printed in Virginia. In that article, Heard referred to having “faced our culture’s wrath” after speaking up against sexual violence.

Heard, who was a witness for the defence in the English case, sought to rid herself of the claim by arguing the principle of “been there, done that” (collateral estoppel) and “show me some respect” (comity).

Collateral estoppel precludes a subsequent trying of issues already litigated, where the litigation has resulted in a valid, final judgment between the same parties or parties who have identical interests. Comity is the principle whereby recognition is given — as a matter of courtesy rather than obligation — to the legislative, executive and judicial acts of a foreign jurisdiction.

Heard effectively argued that London had already done the heavy lifting in Depp v News Group Newspapers, so Virginia need not worry about it in Depp v Heard. But that argument went down like a libellous lead balloon with the judge.

Leaving aside the arguments that neither the parties, nor the articles, were the same, the court noted that the legal systems were not the same. Comity provides that the Virginia court should give credence to “any order of a foreign court of competent jurisdiction, entered in accordance with the procedural and substantive law . . . when that law, in terms of moral standards, societal values, personal rights, and public policy, is reasonably comparable to that of Virginia”. Here’s the rub: the judge found UK defamation law wanting.

Despite Judge Azcarate’s statement that “of course, this court means no disrespect to the procedure adopted in the UK”, it may be difficult not to take offence when a judge appears less than impressed with a country’s legal system, noting that in Virginia “trial by jury . . . ought to be held sacred” but in England often “judgments are based on the reasoned decision of one judge”.

Even greater feelings of offence may arise when one’s country is lambasted for its “overreaching suppression of free speech”, which “drove the United States to relegate the freedom of speech into a solid foundation of civil liberty”. Giving birth to the sacred mantra of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”

It is ironic that in refusing to recognise the clearly “reasoned” but ostensibly free-speech “chilling” English libel judgment, the Virginia court has turned its back on one of the few English court defamation rulings in favour of a newspaper and blown some good fortune Johnny Depp’s way, handing the Hollywood bad boy a chance at redemption.

Amber Melville-Brown is a partner and head of media law at the New York office of London law firm Withers

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