Johnny Depp-Amber Heard libel verdict should scare social media users

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The whirlwind of reporting on the recent Johnny Depp-Amber Heard libel lawsuit has overlooked a key aspect of the case: Heard did not in fact write any of the statements that formed the basis of the libel claims against her. Specifically, it was made clear during the trial that the American Civil Liberties Union wrote the article, which contained two of the three statements at issue, and the third statement at issue – the title of the article – was written by a Washington Post editor. .

Based on the jury’s findings, any time someone posts a link or references a defamatory story with even a few words of (non-defamatory) approval, they are posting a defamatory statement.

So if Heard didn’t actually write the statements, even though she was listed as the author, how was she convicted of defaming Depp? The answer, at least for Depp’s lawyers (and, presumably, the jury), is that Heard “republished” the article when she tweeted a link to it, and so she is equally responsible for the content. of the article as if she had written the whole thing herself.

The implications are frightening. Based on the jury’s findings, any time someone posts a link or references a defamatory story with even a few words of (non-defamatory) approval, they are posting a defamatory statement. Jury finds Heard’s statement simply summarizing the article without reference to Depp or her relationship to him was enough to be considered a “republication”, creating a major setback for the #MeToo movement and media users social in general.

Until the Depp-Heard case, the republication standard was traditionally limited in most states by the “single publication rule”, which states that multiple copies of the same defamatory publication cannot be counted as defamatory publications. distinct, unless each publication is intended to achieve a purpose. different audience. This rule was created to protect newspapers from multiple libel suits arising from a single article that appeared in each newspaper published that day.

You can see the single publication rule in the instructions to the jury members of the Depp-Heard trial, whose members were informed that they could find that Heard republished the article if she distributed it for “the purpose of achieving a new audience” or “affirmatively reiterated” the statement. The jury instructions also stated that simply including a hyperlink did not constitute reposting, although “adding content” to the link might. However, the instruction did not specify what “add content” meant.

Understood Tweeter link to the Post story read, “Today I published this op-ed in The Washington Post about women channeling their rage against violence and inequality into political power despite the cost of coming forward . From college campuses to Congress, we’re balancing the scales.

In his post, Heard did not mention Depp (although, to be fair, neither did the article), and the tweet itself was not included in the list of statements provided to the jury to determine whether there had been defamation. Indeed, the tweet is even further removed from Depp, the person who claims to have been defamed, than from the story itself as it fails to mention Heard’s own struggles with domestic violence.

Additionally, it’s hard to imagine how Heard’s tweet could have erased either of the two bars defining the act of reposting. Reaching a different audience via a tweet seems ridiculous when the Post’s website already has an international reach. In fact, other cases have shown that social media posts do not change reach when the original post already has a large following due to its presence on a prominent, publicly accessible news website. The jury’s finding in this case flies in the face of existing precedent that social media posting does not republish an article but merely expands the scope of the original post.

Likewise, there was no reiteration of the defamatory language, evidenced by the fact that the tweet itself was not provided to the jury as a possibly defamatory statement. Thus, the jury seems to indicate that just by summarizing the article in a positive way, a tweet with a hyperlink can be considered a separate publication.

Again, this decision could have a massive impact on anyone retweeting things online, especially those involved in campaigns like #MeToo in which many tweets are just declarations of approval or sympathy for the story. of another. If that person’s story ends up being found to be defamatory, is each social media post referring to it a separate defamatory statement?

After all, the Tweeter by actor Alyssa Milano who greatly empowered the #MeToo movement in 2017 says, “If you’ve been harassed or sexually assaulted, write ‘me too’ in response to this tweet. Milano later said his tweet was inspired by media coverage of Harvey Weinstein. If she had linked to the original New York Times article and it was later found to be defamatory, the standard set by the Depp-Heard case could extend liability for defamation to her and potentially any other person who would have answered – a few tens of thousands of people. .

The statement in the jury statement that there must be “additional content” beyond posting a hyperlink is also vague and dangerous for #MeToo. The phrase “me too” is literally two words of extra content. This sentence connects the original story to a new story of abuse or mistreatment for the perpetrator, and it connects the original story to a larger picture of widespread mistreatment of women.

Here too, recent court cases have provided more protection than the recent jury verdict. Appeals courts have said that simply referencing or endorsing an article does not create a separate publication. Specifically, if the text appended to a posted link does not name the complainant or reiterate the defamatory content, the single posting rule disallows consideration of the online reference to the defamatory post. Such online references simply call attention to the existence of the article and do not present the defamatory content itself.

The impact of this jury verdict is difficult to predict, not least because Heard’s attorneys have said they will appeal. Even if the verdict stands, a single jury verdict has no official precedent value. It cannot be invoked by other courts for their own business. But the fact that this high-profile verdict has been delivered may be enough to keep others from speaking out.

What is most disturbing here is that the lawsuit showed how careful Heard was when approving the Washington Post article. The story doesn’t mention that she was abused, and her tweet says nothing about her own experiences with Depp. But she was still accused of defaming her ex-husband. Most women don’t have Heard’s resources or access to a lawyer. They may well decide that it is better not to risk saying anything.

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