Thread by @LuciaOC_

Me again, your friendly neighbourhood legal correspondent, with another little thread about some of the legal issues in the #DeppHeardTrial:

Depp has alleged defamation “per se”, which means that the statements are presumed to be defamatory, without requiring them to be put in context/use of external facts. Defamation per se applies to implications that are particularly serious, i.e. the commission of a crime.

It means the plaintiff, Depp, does not have to prove that the allegations were harmful in order to win – they are presumed to be harmful, because of their severity.

The implication of the op-ed is that Heard was a victim of abuse and that Depp was the perpetrator. This is an allegation of a serious crime, so his argument that it’s defamation per se seems right to me. That means he will, rightfully, have a lower bar for proving damage.

This is a case of defamation by implication, rather than straightforward defamation, because Depp is not named in the op-ed. The test here is whether a regular Washington Post reader would have inferred that the piece implied that the perpetrator is Depp.

I initially thought this would be tough for him to prove given that the article was written very carefully — the the article is not about the abuse itself but about the consequences of speaking up, and because it says she became a representative of abuse, rather than a "victim"

But after reading through the law I think I've changed my mind about this, and I think Depp will succeed on this point, because this is what the law of defamation by implication is supposed to cover — statements that are carefully worded but still carry a defamatory implication.

I think that it’s probably legally true that the implication is inherent in the article because her being a victim is an assumed fact that underlies the discussion about speaking up, & given that it seems clear that most readers would infer that the article is a reference to him

Depp is a “public figure”, so under Virginia defamation law he has to prove what we call “actual malice” on Heard’s part. That means he has to prove that she intentionally made false statements about him and that she intended their defamatory implications.

So with Depp not needing to prove damages, and in my opinion being in the clear in terms of proving the implied defamatory meaning, we are left with two questions:

1) Heard's intention, noting that this is a higher bar than usual; and

2) truth.

If Depp proves to the jury that the abuse never happened, and that Heard knew it never happened, and that she intended for the op-ed to imply that it did happen, he wins.

But Heard has a defense if she proves, on a preponderance of the evidence, that *any* incident of abuse, including psychological abuse, happened. That’s because she does not specify any particular incident in the op-ed, merely that she was, in general, a victim of abuse by Depp.

On the question of physical/psychological abuse — domestic violence is defined under Virginia law as physical or sexual violence, or the threat of physical or sexual violence. So she does not actually have to prove any physical assaults, but just that she was in fear of violence.

The VA attorney general defines domestic abuse as “a pattern of behavior, and a method of control. It is a means of establishing a hierarchy of power within a relationship, in which one partner dominates the other through use of physical violence and/or psychological abuse.”

I've said this before, but to reiterate: legally, domestic abuse is not about the fact of one violent incident or another. It's about a pattern of coercion and control. That's what the jury will have to decide — which one was abusing their power in the relationship.

The law is clear that DV is not limited to physical violence. But this might be complicated by the fact that she has alleged physical assaults. If jurors do not think there's enough proof of those, they might find in Depp's favour even though psychological abuse might be proven.