Depp case will lead to 'expensive awakening' for newspapers if they feel emboldened by his defeat

Analysis: But case might discourage other claimants from starting action in first place

Johnny Depp, here pictured at the Royal Courts of Justice, in July, has lost his libel case against the Sun newspaper (Getty Images)

It would be nice to think that The Sun’s victory over Johnny Depp will mark the beginning of a golden age in the Royal Courts of Justice, where newly emboldened newspapers will sally forth with the trusty shield of truth to defend them against well-heeled claimants.

Anyone who does so might be in for an expensive awakening.

Truth – or justification as it was known before the reforms of the 2013 Defamation Act – has always been there as a defence, but it has always been very difficult to mount, and potentially ruinous if it fails.

The “chilling” effect of libel has always been the way the cards are stacked against the defence and the astronomical bill – in damages and legal costs – if you lose.

Depp, like all claimants, had three things he needed to prove to establish his action against The Sun:

• That the words complained of bore a defamatory meaning causing serious harm to his reputation

• That he had been adequately identified in the publication

• That it had been published to third parties

The story referred to Depp as a wife beater; he was named in it; and it was published by The Sun, so it was fairly easy for Depp to fulfil his part. The court assumes all libels to be untrue, so now the burden switched to The Sun to prove, on the balance of probabilities, the truth of what it had published. That is the hard part.

Journalists remember well the 1987 case of Jeffrey Archer v The Daily Star, where the author won £500,000 damages plus £700,000 costs – that’s more that £3.4m today – when he sued the Star after it said he had paid a prostitute for sex.

The Star’s defence was truth, but the jury believed Archer rather than Monica Coghlan, a prostitute.

We comfort ourselves in the knowledge that Archer had his comeuppance years later when he was jailed for perjury and The Star won a £1.5m settlement from him.  

What is perhaps surprising about the Depp case is that it got to court at all. There are pre-action procedures that all claimants and defendants must follow in an attempt to reach a settlement rather than incur the considerable cost of a trial.

Far more actions are settled now than ever get to court, so why this case did not follow that path is unclear.

When training journalists in libel one of things I tell them is to avoid the High Court if they possibly can, especially the witness box. There you are facing a skilled QC who is being paid an inordinate amount of money to make you look like a liar, fool, fraud or all three.

But as Depp found out, and Amber Heard to an extent as well, it cuts both ways and when you sue in defence of your reputation, very often the action has the very opposite effect.

It has to be said that the original story published by The Sun would be long forgotten by now. Few people will forget some of the details to have emerged in the subsequent libel trial.

The Depp case therefore does not really break new ground, but the fact that it happened at all serves as a reminder of just how difficult a truth defence can be.

The questions a publisher must ask remain the same: what evidence of truth do we have? Who are our witnesses? Will they testify for us? Do we believe they have told us the truth? More importantly, will the judge believe they are telling the truth?

So the verdict might not encourage more newspapers to try truth as a defence, but given what happened to Depp, it might discourage other claimants from starting an action in the first place.

David Banks is a media law consultant and journalist