Many of us have been glued to our television sets watching the defamation trial between Johnny Depp and Amber Heard. Not only are there high-profile parties and witnesses at the forefront, but the trial also offers an irresistible peek into the lives and careers of the Hollywood rich and famous.

UPDATE: On June 1, the jury in this case found that Ms. Heard defamed Mr. Depp and awarded him more than $10 million in damages. The jury also awarded Ms. Heard $2 million in damages, finding that she had been defamed by a lawyer for Mr. Depp.

As you probably already know, the trial arises out of Johnny Depp’s claim that statements made by Amber Heard regarding alleged abuse in their relationship have caused him harm by leading to lost career opportunities—most notably, the sixth Pirates of the Caribbean movie. While it is debatable whether another sequel in this franchise is necessary, Mr. Depp argues that were it not for Ms. Heard’s allegations, he would have starred in this film, which would have earned him millions of dollars beyond what he’s already made from this series.

Johnny Depp and Amber HeardThe most interesting aspect of this trial, from a legal perspective, is that the basis of Mr. Depp’s complaint is not the allegation of domestic violence made by Ms. Heard in her petition for divorce or request for a restraining order filed in their divorce proceeding in 2016, but rather the statements made by Ms. Heard in an op ed piece published in The Washington Post two years later. In her essay, Ms. Heard referenced her experience with domestic violence and how speaking out about that abuse previously made her a target. She did not mention Mr. Depp by name in the article.

Defamation in Non-Hollywood Divorce

Watching this autopsy of a toxic relationship play out in public over the past few weeks, many people have wondered: what can I say about my spouse when we get divorced? Before this trial, few people thought about how their own story might not be theirs to tell, or that they might even get sued for telling it.

In Texas, the elements of a defamation claim are:

  1. a defendant made a false statement about the plaintiff to a third party;
  2. that statement caused the plaintiff reputational or material harm; and
  3. the defendant acted either negligently or purposefully in making that statement.

On its face, this means that any time either party to a divorce proceeding makes negative statements to third parties about their spouse (which obviously happens a lot!), and those statements are both false and caused reputational or material harm, they are, effectively, at risk for a defamation claim.

However, as we know from watching the trial, the statements Ms. Heard made regarding domestic violence during her divorce proceeding are not at issue; this is because one of the defenses to defamation is absolute privilege, which extends to judicial officers, attorneys, jurors, and statements made by a party during trial or in a pleading. Accordingly, any allegations a party makes about their spouse in the legal context of their divorce proceeding—in their pleadings, in a deposition, or at a hearing or trial—are absolutely privileged and they cannot form the basis for a defamation claim.

The experienced attorneys at Brousseau Naftis & Massingill, P.C. have represented clients in family law matters for decades. For more information, contact us today for a no-obligation consultation.

‘Did you hear…?’

What happens beyond the divorce proceeding itself is a different story. Over the years, we have had many clients tell us about multiple ways in which they have publicly disclosed information about their marriage: manuscripts being written for publication, speeches given to support groups, vengeful letters sent to friends, family or employers of former spouses, social media posts outing secret relationships, and whispered conversations on the sidelines of kids’ soccer games.

What we’ve told our clients, and what is even more evident now through the claims and counterclaims filed by Mr. Depp and Ms. Heard against each other, is that all of these public, derogatory statements could be considered defamation if they actually cause the spouse reputational or material harm. In fact, Ms. Heard’s counterclaim for defamation against Mr. Depp is based upon out-of-court statements his attorney made to the press about her allegations. These statements—not made in a courtroom or as part of a pleading—fall outside of absolute privilege and open Mr. Depp up to his own liability.

The most common defense to such a claim is, of course, that the statements were true. This is the defense Ms. Heard is relying on, which is why we’ve heard the details of the alleged domestic violence described in Court by Ms. Heard and corroborating witnesses. If Ms. Heard can prove that she was, in fact, a survivor of domestic violence at the hands of Mr. Depp, then she will have met her burden to prove her defense against Mr. Depp’s defamation claim against her. However, the cost of these very public days in Court defending herself are significant and go far beyond the $50 million Mr. Depp is after.

Ultimately, the ongoing trial between two Hollywood celebrities is more than just tabloid fodder. In a world in which anyone has access to a public platform from which they can say or write anything they want about their estranged spouse, everyone—parties, witnesses and attorneys—should proceed with caution.