Johnny Depp vs Amber Heard defamation trial: Why did Johnny Depp file a defamation lawsuit against Amber Heard and not breaching of the NDA?
by Ana Walia | Sat, 14 May 2022 20:58:39 GMT
Johnny Depp and Amber Heard. Image Source: Vox

Johnny Depp and Amber Heard are gearing up to return to the Fairfax County Court in Virginia on Monday where they are battling a defamation trial after Johnny Depp sued Amber Heard over an op-ed she wrote in 2018.

Amber Heard had accused Johnny Depp of domestic abuse and violence in 2016, after which she obtained a temporary restraining order against him, which was later dropped when the former couple decided to settle their divorce in 2017. Their divorce settlement stated that Amber Heard would be paid $7 million and both parties had agreed to non-disparagement and confidentially clauses. According to reports, one of the reasons why non-disparagement and confidentiality clauses were agreed upon was to achieve their mutual wish and desire of them to resolve any issues regarding the petitioner’s claims of domestic violence.

The experts have stated that in the former couple’s NDA, both Johnny Depp and Amber Heard had agree not to make any derogatory, insulting, critical, or accusatory words, either directly or indirectly, spoken or implied against each other but Amber Heard went ahead and published an op-ed for The Washington Post in 2018 in which she described herself as a survivor of domestic abuse and violence. Although Amber Heard did not mention Johnny Depp in that op-ed, it was very clear that she meant him especially after the 2016 allegations. 

Now there have been questions about why Johnny Depp did not sue her for breaching the NDA but for the column she wrote. He mentioned in his lawsuit that after the op-ed was published, he had lost on a couple of projects, including Pirates 6, and his reputation was tarnished as well. To win the trial, Johnny Depp has to not only prove that Amber Heard disparaged him but also the fact that she fabricated the domestic violence allegations against him, which, according to experts, is a pretty high bar to prove. Johnny Depp has made his stance clear that he did not strike Amber Heard and it was him who is the victim of domestic abuse and violence among the two of them. 

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A source close to Johnny Depp mentioned that he had several legal paths where he could have sued Amber Heard but he declined all of those and decided to sue her for defamation. A Virginia defamation trial lawyer, Lee Berlik who has been watching the case very closely and has written about it shared that it could be because Johnny Depp will be able to recover a higher damages award for the defamation compared to breaching of the contract. It has also been reported that one of the reasons could that the op-ed was vaguely written which technically did not breach any NDA clauses so the actor decided to move ahead with the defamation trial.

Another factor is that the settlement agreement included an arbitration provision, which would have kept the dispute confidential. Louis Meisinger, a retired judge who has served as a mediator in several high-profile matters, including a sexual misconduct lawsuit against James Franco, would hear any claim for breach which would take place behind the close doors. And the current trial in Fairfax County Court, Virginia guarantees that it will be live-streamed for the world to see hope that the result of the case will be determined as much by its influence on public opinion as by the jury’s verdict.

Amber Heard's lawyers insisted she removes a line from her op-ed that read that she had obtained a TRO against her then-husband (Johnny Depp), which was covered by the confidentiality provision. According to the testimony from the counsel of the ACLU, Amber Heard wanted that line to be kept in the final edit, but she finally listened to her lawyers and removed it. The experts say that if Johnny Depp had sued her for NDA breach, her lawyers would have argued that in her op-ed she only mentioned the reaction that came following her allegations in 2016.

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Even though the op-ed didn't specifically mentioned Johnny Depp's name, a Virginia judge, Bruce White, found in 2020 that it indicated a potentially defamatory connotation namely, that Johnny Depp abused Amber Heard and an arbitrator might reach the same conclusion in a breach action. The actress's attorneys are now hoping to persuade the jury that the op-ed did not suggest a defamatory connotation but simply stated the facts regarding the blowback Amber Heard suffered. If the jurors agree, they will not need to consider the issue of who is speaking the truth to dismiss Johnny Depp's lawsuit.

They are also contending, as a fallback, that Heard's allegations of abuse are true. Heard would also win if the jury agrees or determines Johnny Depp hasn't proven them to be false by a preponderance of the evidence. In the divorce settlement statement that was released by the former couple, Johnny Depp clarified that it was written by the lawyers and he was not happy with it. The actor mentioned in the courtroom that he was advised not to fight it.

The court resumes Monday with Amber Heard on the stand.  

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