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Defamation nation
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The year 2020 saw a number of high profile defamation cases (or scandals!) feature prominently in the UK press. Below we take a look at the two of the most prominent cases:

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Blake Morgan e-Magazine Spring 2021 Issue 4

by Nicola Rochon

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Rebekah Vardy v Coleen Rooney

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This case is still ongoing, but a significant milestone in the case was publicised in November 2020 when The Hon. Mr Justice Warby gave his judgment on the preliminary issue in Mrs Vardy's claim against Mrs Rooney. The preliminary issue was – what was the single, natural and ordinary meaning of the words used in Mrs Rooney's infamous Instagram posts published in October 2019?

The meaning of the words complained of is a fundamental aspect of any defamation claim and it is up to the court to assess and determine the natural and ordinary meaning, as a question of fact, by ruling on the meaning that the ordinary reasonable reader would find the words to bear. Once the meaning of the words has been established, the position and strength of each party's case is a lot clearer. This can often lead to parties resolving and settling the claim, or, if the matter still cannot be resolved, each party will at least have a clearer understanding of what they will need to prove in order to succeed with their claim (or defence). This is why the meaning of the words complained of will usually be determined in a preliminary hearing, early on in proceedings, rather than at the trial itself.

Mrs Rooney's posts, set over a series of individual Instagram stories, revealed in a "whodunnit" fashion that she had been troubled for a few years by someone leaking information about her and her family's personal life to The Sun newspaper. The stories concluded with "I have saved and screenshotted all the original stories which clearly show just one person has viewed them. Its …..Rebekah Vardy's account". The Instagram posts and ensuing feud between Mrs Vardy and Mrs Rooney received a significant amount of press coverage.

In bringing her claim of defamation against Mrs Rooney, Mrs Vardy's position was that the meaning of the words complained of (which included all eight posts published by Mrs Rooney) was:

"that the Claimant has consistently and repeatedly betrayed the Defendant's trust over several years by leaking the Defendant's private and personal Instagram posts and stories for publication in the Sun Newspaper including a story about gender selection in Mexico; a story about the Defendant returning to TV; and a story about the basement flooding in the Defendant's new house."

In response Mrs Rooney's position was that the meaning of the words was: 

"there are reasonable grounds to suspect that the Claimant was responsible for consistently passing on information about the Defendant's private Instagram posts and stories to The Sun newspaper."

Unfortunately for Mrs Rooney, The Hon. Mr Justice Warby agreed with Mrs Vardy and stated in his judgment " The whole purpose of the post, on the face of it, is to identify publicly the someone, the person whom Ms Rooney has "clearly" identified as being guilty of the serious and consistent breach of trust that she alleges. The ordinary reader would not regard the post as merely telling him or her who it is that Ms Rooney suspects, or as simply raising Ms Vardy's guilt as no more than one possibility, among others……….the reader is told early on that Ms Rooney formed a suspicion; the rest of the post is telling the reader how she established the truth. And there is "no hint" in the post that Ms Vardy's account could be accessed or operated by anyone other than the named account holder. I do not consider that the "hint" can be supplied by resorting to alleged "common knowledge" that people like Ms Vardy have teams to curate their social media output. "

Part of Mrs Rooney's defence is that the contents of her posts on social media were true. In light of this preliminary ruling, in order for that defence to be successful, Mrs Rooney will need to prove that her posts, when read with the meaning determined by the Hon. Mr Justice Warby, were substantially true.

Although this does not mean that Mrs Vardy has been successful in her defamation claim against Mrs Rooney, in light of this Judgment, currently the score appears to be 1 – 0 to Mrs Vardy. We will continue to monitor and report on this case as it progresses.

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Johnny Depp v (1) News Group Newspapers Ltd (2) Dan Wooton

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Johnny Depp's libel claim against the owners of The Sun newspaper also came to a head in November 2020. The Hollywood actor pursued an action of libel in relation to The Sun's 2018 article that had the headline "GONE POTTY How can JK Rowling be ‘genuinely happy casting wife beater Johnny Depp in the new Fantastic Beasts film?'".

In a preliminary hearing it was determined that the natural and ordinary meaning attributed to each of the articles published by The Sun was as follows:

'The Claimant was guilty, on overwhelming evidence, of serious domestic violence against his then wife, causing significant injury and leading to her fearing for her life, for which the Claimant was constrained to pay no less than £5 million to compensate her, and which resulted in him being subjected to a continuing restraining order; and for that reason is not fit to work in the film industry.'

However, much like Mrs Rooney, The Sun's legal team put forward a defence of truth, namely that the article was not defamatory because what they had published was substantially true. Of course to rely on this defence, The Sun had to prove that it was more probable than not that the statements made about Mr Depp were in fact substantially true. As a result, a trial ensued, and whilst the basis of this trial was a claim of defamation brought by Mr Depp against The Sun, it evolved into a hearing in which the Court had to determine whether the 14 incidents of physical violence by Mr Depp alleged by his ex-wife, Amber Heard, could be proved.

Unfortunately for Mr Depp, Mr Justice Nicol concluded that in 12 of the 14 alleged incidents, Mr Depp had physically assaulted Ms Heard. As a result, Mr Depp's claim against News Group Newspapers Ltd and the author of the article, Dan Wooton, was dismissed in its entirety. Mr Justice Nicol went on to note that although Mr Depp had proven the necessary elements of his cause of action in libel, News Group Newspapers Ltd and Mr Wooton had shown that what they published was substantially true and as a result the Defendants had a complete defence. As a result, Mr Justice Nicol did not consider the fairness of the article or any malice because they were immaterial to the defence of truth.

This case serves as a high profile reminder of the strength of the "truth defence" in a defamation claim.

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Defamation nation

The year 2020 saw a number of high profile defamation cases (or scandals!) feature prominently in the UK press. Below we take a look at the two of the most prominent cases:

by Nicola Rochon

Rebekah Vardy v Coleen Rooney

defamation-05.png

This case is still ongoing, but a significant milestone in the case was publicised in November 2020 when The Hon. Mr Justice Warby gave his judgment on the preliminary issue in Mrs Vardy's claim against Mrs Rooney. The preliminary issue was – what was the single, natural and ordinary meaning of the words used in Mrs Rooney's infamous Instagram posts published in October 2019?

The meaning of the words complained of is a fundamental aspect of any defamation claim and it is up to the court to assess and determine the natural and ordinary meaning, as a question of fact, by ruling on the meaning that the ordinary reasonable reader would find the words to bear. Once the meaning of the words has been established, the position and strength of each party's case is a lot clearer. This can often lead to parties resolving and settling the claim, or, if the matter still cannot be resolved, each party will at least have a clearer understanding of what they will need to prove in order to succeed with their claim (or defence). This is why the meaning of the words complained of will usually be determined in a preliminary hearing, early on in proceedings, rather than at the trial itself.

Mrs Rooney's posts, set over a series of individual Instagram stories, revealed in a "whodunnit" fashion that she had been troubled for a few years by someone leaking information about her and her family's personal life to The Sun newspaper. The stories concluded with "I have saved and screenshotted all the original stories which clearly show just one person has viewed them. Its …..Rebekah Vardy's account". The Instagram posts and ensuing feud between Mrs Vardy and Mrs Rooney received a significant amount of press coverage.

In bringing her claim of defamation against Mrs Rooney, Mrs Vardy's position was that the meaning of the words complained of (which included all eight posts published by Mrs Rooney) was:

"that the Claimant has consistently and repeatedly betrayed the Defendant's trust over several years by leaking the Defendant's private and personal Instagram posts and stories for publication in the Sun Newspaper including a story about gender selection in Mexico; a story about the Defendant returning to TV; and a story about the basement flooding in the Defendant's new house."

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In response Mrs Rooney's position was that the meaning of the words was: 

"there are reasonable grounds to suspect that the Claimant was responsible for consistently passing on information about the Defendant's private Instagram posts and stories to The Sun newspaper."

Unfortunately for Mrs Rooney, The Hon. Mr Justice Warby agreed with Mrs Vardy and stated in his judgment " The whole purpose of the post, on the face of it, is to identify publicly the someone, the person whom Ms Rooney has "clearly" identified as being guilty of the serious and consistent breach of trust that she alleges. The ordinary reader would not regard the post as merely telling him or her who it is that Ms Rooney suspects, or as simply raising Ms Vardy's guilt as no more than one possibility, among others……….the reader is told early on that Ms Rooney formed a suspicion; the rest of the post is telling the reader how she established the truth. And there is "no hint" in the post that Ms Vardy's account could be accessed or operated by anyone other than the named account holder. I do not consider that the "hint" can be supplied by resorting to alleged "common knowledge" that people like Ms Vardy have teams to curate their social media output. "

Part of Mrs Rooney's defence is that the contents of her posts on social media were true. In light of this preliminary ruling, in order for that defence to be successful, Mrs Rooney will need to prove that her posts, when read with the meaning determined by the Hon. Mr Justice Warby, were substantially true.

Although this does not mean that Mrs Vardy has been successful in her defamation claim against Mrs Rooney, in light of this Judgment, currently the score appears to be 1 – 0 to Mrs Vardy. We will continue to monitor and report on this case as it progresses.

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Johnny Depp v (1) News Group Newspapers Ltd (2) Dan Wooton

In a preliminary hearing it was determined that the natural and ordinary meaning attributed to each of the articles published by The Sun was as follows:

'The Claimant was guilty, on overwhelming evidence, of serious domestic violence against his then wife, causing significant injury and leading to her fearing for her life, for which the Claimant was constrained to pay no less than £5 million to compensate her, and which resulted in him being subjected to a continuing restraining order; and for that reason is not fit to work in the film industry.'

However, much like Mrs Rooney, The Sun's legal team put forward a defence of truth, namely that the article was not defamatory because what they had published was substantially true. Of course to rely on this defence, The Sun had to prove that it was more probable than not that the statements made about Mr Depp were in fact substantially true. As a result, a trial ensued, and whilst the basis of this trial was a claim of defamation brought by Mr Depp against The Sun, it evolved into a hearing in which the Court had to determine whether the 14 incidents of physical violence by Mr Depp alleged by his ex-wife, Amber Heard, could be proved.

Unfortunately for Mr Depp, Mr Justice Nicol concluded that in 12 of the 14 alleged incidents, Mr Depp had physically assaulted Ms Heard. As a result, Mr Depp's claim against News Group Newspapers Ltd and the author of the article, Dan Wooton, was dismissed in its entirety. Mr Justice Nicol went on to note that although Mr Depp had proven the necessary elements of his cause of action in libel, News Group Newspapers Ltd and Mr Wooton had shown that what they published was substantially true and as a result the Defendants had a complete defence. As a result, Mr Justice Nicol did not consider the fairness of the article or any malice because they were immaterial to the defence of truth.

This case serves as a high profile reminder of the strength of the "truth defence" in a defamation claim.

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Johnny Depp's libel claim against the owners of The Sun newspaper also came to a head in November 2020. The Hollywood actor pursued an action of libel in relation to The Sun's 2018 article that had the headline "GONE POTTY How can JK Rowling be ‘genuinely happy casting wife beater Johnny Depp in the new Fantastic Beasts film?'".