13 November 2020

zoom-in-header

In this issue of  ZOOM-IN Brief, Johnny Depp loses ‘wife-beater’ libel case; Channel 4’s When Cruises Go Wrong privacy complaint is not upheld by Ofcom; and Manchester United footballer wins injunction following pregnancy disclosure.

Editorial credit: Featureflash Photo Agency / Shutterstock.com
Editorial credit: Featureflash Photo Agency / Shutterstock.com
Johnny Depp

Libel - Johnny Depp loses ‘wife-beater’ libel case

Hollywood superstar Johnny Depp has lost his libel case against the Sun newspaper and its executive editor Dan Wootton over the article  ‘Gone Potty: How can JK Rowling be ‘genuinely happy’ casting wife-beater Johnny Depp in the new Fantastic Beasts film?’ After a 16 day trial over the summer at the Royal Court of Justice in London, the judge found, on the balance of probabilities, that the allegations made by the Sun were substantially true.

The Sun relied upon 14 allegations of violence by Depp against his then wife Amber Heard, who appeared as a witness for the newspaper. The judge found that 12 of them had taken place, and that Mr Depp was inebriated with alcohol and/or drugs such as cocaine and MDMA during most of these assaults. These included an incident where allegedly Depp kicked and screamed at Heard during a flight on a private jet, after which he passed out in the plane’s bathroom; and an incident that Heard said took place during a train journey in south-east Asia as part of the couple’s honeymoon, where Depp hit Heard and held her by the throat. On the well-publicised incident where Depp badly cut his finger, using it to write graffiti around a rented house in Australia, the judge found Depp had assaulted Heard and that Heard was not responsible for Depp’s injury.

The judge rejected Depp’s characterisation of Heard as a gold-digger who had invented her claims that he was violent as an ‘insurance policy’. Heard donated the $7m she received in the divorce settlement to charity.

The case is an example of the defence of truth being used successfully in a libel claim. As both sides said at trial, it came down to which side’s evidence the judge believed.

Since the judgment, Depp has agreed to resign from Fantastic Beasts, the JK Rowling film series set in the same world as Harry Potter, in which he plays Grindelwald.

Depp has vowed to appeal the judgment, with his lawyers describing it as ‘flawed’, and ‘as perverse as it is bewildering’. It is generally difficult to overturn the detailed factual findings of a judge who has heard the evidence in person. However, no details of any appeal have yet been made public. zoom-in will report on any further developments.

Separately, Depp is suing Heard for libel in Virginia, USA, over an article she wrote in the Washington Post in which she claimed she was a domestic abuse survivor. That case may well involve many of the same allegations. There will be a number of differences, however. As well as Heard being sued personally in the US case (in the English case she was merely a witness for the defendant newspaper), that case will be decided by a jury rather than a judge. Heard has also filed a counterclaim against Depp, alleging he has ‘orchestrated a false and defamatory smear campaign’ against her.  The trial is not expected to take place until May 2021.

Regulation – Channel 4’s When Cruises Go Wrong privacy complaint not upheld by Ofcom

Ofcom has not upheld a privacy complaint made in relation to the Channel 4 documentary When Cruises Go Wrong which explored the potential dangers of luxury cruises. The documentary included interviews with people who had experienced extreme weather events, crime or emergency evacuations on cruise ships, and used various pieces of real footage throughout.

The programme included a segment about excessive alcohol consumption on cruise holidays and how this can lead to injuries or physical fights between passengers. This segment contained a four-second clip featuring Mr and Mrs R. This footage, which appeared to have been filmed on a mobile phone, showed two women, one of whom was Mrs R, seemingly involved in a physical altercation and shouting. A man, Mr R, appeared to be attempting to break up the altercation by putting himself between the two women. Mrs R’s face was not visible, and she was largely obscured by the other woman in the clip, while Mr R’s face was visible briefly and unobscured. Mr R’s voice could be heard, though what he said could not be made out.

Mrs R complained that her and her husband’s privacy was unwarrantably infringed in the programme and had been included without their consent and without Mr R’s face being obscured.

Channel 4 said the use of the footage of Mr and Mrs R was as part of an illustration of a “darker side” to cruising from that depicted in cruise ship publicity material.  It said that the filming occurred in a public place – a bar or café on a busy cruise ship, members of the public witnessed the event, and that a member of the public had filmed the incident and made the clip publicly available.

Assessing whether Mr R had a legitimate expectation of privacy in relation to the footage of him being included in the programme, Ofcom took into account that the incident occurred in full view of members of the public who were present . However, Ofcom also acknowledged that intervening in a physical altercation to protect your spouse may reasonably be regarded as a sensitive situation,and that this could give rise to an expectation of privacy.

Ofcom concluded that, in all the circumstances, Mr R did have a limited legitimate expectation of privacy and that the broadcast of the footage amounted to an interference with Mr R’s privacy rights. However, it considered that there was a genuine public interest in broadcasting programmes which explore the potential dangers of luxury cruises and convey to viewers the range of difficulties that those working or staying on cruise ships may face.On this occasion, Ofcom sided with the broadcaster’s right to freedom of expression and the audience’s right to receive information and ideas without undue interference,which it said in this case outweighed Mr R’s expectation of privacy in relation to the footage.As to whether Mrs R had a legitimate expectation of privacy, Ofcom came to the same conclusion. Accordingly, the complaint was not upheld.

Privacy – Manchester United footballer wins injunction following pregnancy disclosure

Manchester United footballer Aaron Wan-Bissaka has won a privacy injunction against ex-girlfriend Rhianna Bentley, after she broke the news of his current partner’s pregnancy on social media.

The Court granted an order to protect privacy, but refused one to prevent harassment, during the course of two hearings on 6 and 9 November.

Wan-Bissaka and Bentley had been in a long-term relationship, following which he got together with April Francis.

Francis then became pregnant, but she and the footballer kept the news about this private.

The information was first made public by Bentley on Instagram, who published a post thanking her followers for their support during her relationship with Wan-Bissaka, and congratulating him on the “new arrival” and commenting that “a new life is always a blessing.”

Bentley tagged the footballer’s Instagram account so the message appeared directly on his timeline.

Bentley followed up these posts by publishing screenshots of private messages between herself and Wan-Bissaka to Instagram.

The judge said that Ms Bentley had, through her social media posts, “suggested a very recent split…and he had in some way betrayed her by getting another woman pregnant”.

“It may have given the impression the break-up was very recent or even that the relationship was still continuing – that impression would have been false”, he added.

Wan-Bissaka’s barrister told the High Court that the posts by Bentley “lit the touch paper” for media speculation about his client’s private life.

When written to by the star’s lawyers, Ms Bentley replied to insist she had “every right” to speak out and claimed she had suffered “mental and physical” trauma during her time with the footballer.

“It is my human right to have freedom of speech, especially with a situation that involves myself”, she wrote. “I feel as though all victims have a right to speak on their trauma, wouldn’t you agree…”

At the first of two hearings, Bentley gave undertakings not to post anything about Wan-Bissaka online over the weekend while she sought legal advice.

At the second hearing, the judge decided that the footballer was likely to establish at trial that private information about his previous relationship with Bentley should not be published.

Given her Instagram posts and her response to the solicitors, there was a credible threat that she would publish more information, including messages and photographs, unless restrained by an injunction.

The judge also referred to the now very well-established principle that it is not in the public interest to disclose private sexual encounters.

As far as the alleged harassment claim was concerned, the judge found that Bentley’s conduct in posting the information on Instagram, although distressing, did not amount to harassment as it was not unacceptable or oppressive behaviour, or capable of sustaining criminal liability.

The presentation of the claim in terms of harassment reflects the trend for those who object to the publication of information about them online to express their complaints in this way.

bottom

Abbas Media Law is a niche law firm, specialising in advice to independent production companies and broadcasters. We are true experts in our field: all lawyers and advisors have in the past worked either in-house for broadcasters and/or production companies. Accordingly, we fully understand production and the needs of our clients. We offer expert advice and representation on all programme content related matters (legal and regulatory), all aspects of business affairs, as well as complaints-handling and litigation. Visit www.abbasmedialaw.com or contact us directly at info@abbasmedialaw.com.