Most of the attention being paid to Johnny Depp’s defamation suit against Amber Heard has been about the fact he brought it in Virginia rather than in California where both of them live. Most speculate Depp chose Virginia due to the fact its anti-SLAPP law is more hospitable to celebrities and public figures than California’s. He has already been rewarded with a ruling permitting the case to remain in Virginia even if all potential witnesses and evidence are located in California. If that ruling wasn’t enough to lead to the supposition that this case is destined to be decided by the Virginia Supreme Court rather than the Circuit Court of Fairfax County, we now have another interesting ruling in an area in which there’s not a lot of controlling precedent: what it takes to “republish” a defamatory statement and thereby re-start the running of the one-year statute of limitations. That last time Virginia saw a controversial ruling involving the republication doctrine was in Eramo v. Rolling Stone, which was settled shortly after it was appealed. If I had to guess, I would predict that the next Virginia Supreme Court opinion dealing with republication is going to be Depp v. Heard (or, rather, Heard v. Depp).
For those not already aware, Johnny Depp is suing his ex-wife, actress Amber Heard, for an op-ed she wrote for The Washington Post at the end of 2018. The article, entitled “Amber Heard: I spoke up against sexual violence—and faced our culture’s wrath. That has to change,” does not identify Depp by name but, according to Depp, nevertheless implied to readers that Depp is a domestic abuser. In particular, he took issue with the following statements: (1) “I spoke up against sexual violence—and faced our culture’s wrath.” (2) “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” (3) “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.” and (4) “I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion—and my life and livelihood depended on myriad judgments far beyond my control.” The Fairfax County Circuit Court held that with the exception of statement #4, these statements were sufficient to imply to readers that Depp is a domestic abuser, considering the couple’s highly publicized divorce in 2016. Key to this conclusion was the court’s determination that the 2018 op-ed amounted to a republication of Heard’s direct accusations against Depp back in 2016.
Depp argued that although Heard did not make any direct accusations in the 2018 op-ed, the implications were clear because it was widely known that in May 2016, Ms. Heard claimed publicly that Depp hit her repeatedly, struck her with a cell phone, and destroyed the parties’ house, before she “presented herself to the world with a battered face as she publicly accused Mr. Depp of domestic violence and obtained a restraining order against him.” The court agreed, finding that Virginia follows a “somewhat relaxed” standard in defamation-by-implication cases. That standard, most recently expressed by Virginia’s highest court in Pendleton v. Newsome, holds as follows:
Because Virginia law makes room for a defamation action based on a statement expressing a defamatory meaning “not apparent on its face,” evidence is admissible to show the circumstances surrounding the making and publication of the statement which would reasonably cause the statement to convey a defamatory meaning to its recipients. Allegations that such circumstances attended the making of the statement, with an explanation of the circumstances and the defamatory meaning allegedly conveyed, will suffice to survive demurrer if the court, in the exercise of its gatekeeping function, deems the alleged meaning to be defamatory. Whether the circumstances were reasonably sufficient to convey the alleged defamatory meaning, and whether the plaintiff was actually defamed thereby, remain issues to be resolved by the fact-finder at trial.
One aspect of this test that could use a little more fleshing-out by the Virginia Supreme Court at some point is the question of how to identify the relevant “recipients.” I agree with the Fairfax court that several of Heard’s statements in her op-ed could reasonably be read to imply that Heard was abused by someone, but it’s not clear to me that the typical Washington Post reader would infer that Depp is the one who allegedly abused her. Is Amber Heard really that big of a celebrity? At the time the article was published, did the typical Washington Post reader know that she was (or had been) married to Johnny Depp? Or maybe we don’t need to identify the “typical” Washington Post reader, if the relevant audience for purposes of the defamation-by-implication test is the comparatively small group of Hollywood insiders already familiar with the Depp-Heard drama. The Washington Post is read by a lot of different people. In whose eyes need the plaintiff be defamed before the law will recognize a cause of action? Heard’s history of public accusations of abuse against Depp may have been common knowledge among some groups, but among others, Amber Heard is not a household name. (I, for one, had never heard of Amber Heard until this lawsuit was filed. Without Googling her, I would not have known her accusations were against Depp.)
Let’s assume the court correctly applied the Pendleton test and that the relevant audience inferred from Heard’s 2018 op-ed that she was referring to her widely-publicized 2016 allegations against Depp. The statute of limitations for defamation claims in Virginia is just one year. This means that Depp can no longer sue Heard for defamation based on the 2016 allegations, as the statute expired in 2017. The reason he was able to get around the statute of limitations in this case is that he filed his lawsuit within one year of the 2018 op-ed, which the court found to be a “republication” of the 2016 allegations.
So what’s a republication? Under the republication doctrine, “where the same defamer communicates a defamatory statement on several different occasions to the same or different audience, each of those statements constitutes a separate publication” triggering a new statute of limitations. (See Doe v. Roe, 295 F. Supp. 3d 664, 670-71 (E.D. Va. 2018)). If a third person repeats and endorses someone else’s defamatory statement, that third person can be held liable for the republication. (See Lee v. Dong–A Ilbo, 849 F.2d 876, 878 (4th Cir. 1988)). In the Eramo v. Rolling Stone case, the court held that republication occurs when a defendant re-transmits defamatory material or “redistributes the material with the goal of reaching a new audience.” The court added that, in the context of internet articles subject to the single-publication rule, “a statement on a website is not republished unless the statement itself is substantively altered or added to, or the website is directed to a new audience.” (See Eramo v. Rolling Stone, LLC, 209 F. Supp. 3d 862, 879 (W.D. Va. 2016)). The Virginia Supreme Court hasn’t said much about the republication doctrine since it decided Weaver v. Beneficial Fin. Co. over 60 years ago, in which it held that “the author or originator of a defamation is liable for a republication or repetition thereof by third persons, provided it is the natural and probable consequence of his act, or he has presumptively or actually authorized or directed its republication.”
The Virginia trial court found the one-year statute had not expired because Heard’s op-ed, written shortly before Depp’s lawsuit was filed, amounted to a “republication” of her earlier 2016 accusations. I’m not sure that ruling will hold up on appeal. Republication involves more than merely referring to an earlier publication. Existing case law suggests the earlier statement needs to be repeated, or amended, or directed to a new audience. In my view, that does not appear to be the case here. Her op-ed does not repeat or amend her earlier accusations. And a “new audience” would not have been aware of Heard’s 2016 allegations against Depp. As discussed above, without such an awareness, readers would not have understood that Heard was referring to Depp in her op-ed. To the extent readers understood Heard was referring to Depp in her op-ed and that she was implying that he had abused her, this would most likely be because they had previously heard the 2016 allegations she was alluding to in her article.
This brings us back to the statute of limitations. If Depp’s claim is ultimately based solely on accusations made in 2016, the claim would be time-barred–that is, unless the 2016 accusations were effectively “republished” in 2018. Were they? The trial judge says they were. What will the Virginia Supreme Court say?