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Appeal in Depp-Heard case could center on retweet

A headline that Amber Heard retweeted but didn’t write formed one part of a jury's decision that she had defamed her ex-husband Johnny Depp.

FAIRFAX, Va. (CN) — In the coming days, a final order will formalize last week's verdict that Johnny Depp and his ex-wife Amber Heard defamed one another. And that will be the end of that.

Or maybe not.

Following the courtroom drama – and there was plenty of that – a Virginia jury’s verdict could fuel an appeal while again offering food for thought to the legion of Twitter followers holding forth with reckless abandon.

To recap: After a trial that stretched across the better part of two months, a jury found that Heard defamed Depp in a 2018 op-ed published by The Washington Post, in which she described herself as domestic abuse survivor. Separately, the jury found that Depp defamed Heard with a remark made by an attorney acting on his behest.

Jurors awarded Depp $10 million in compensatory damages and $5 million in punitive damages, the latter of which was reduced by the judge to the statutory maximum of $350,000, bringing the actor's total award to $10.3 million. Heard was awarded $2 million in compensatory damages and no punitive damages.

In handing down a split verdict, the jury decided they "believed both of them and disbelieved both," observed attorney Charles D. Tobin, former journalist and leader of Ballard Spahr's media and entertainment law group. "Can both verdicts stand up at the same time, given the same set of facts?"

The case revolved around Heard's op-ed, in which the actress identified herself as a public figure representing domestic abuse. The piece, the first draft of which was written by an ACLU staffer, never mentioned Depp by name but referred to a time when the two actors were married. The jury found defamation in three lines, two in the body of the article and the third being a headline for the online edition: "I spoke up against sexual violence — and faced our culture's wrath. That has to change." 

From the beginning, the 36-year-old star maintained she didn’t write the headline. It is common for editors to write, rewrite or tweak headlines. An ACLU spokesman testified that a Post editor would have written the headline.

But the day after publication of the online edition, Heard sent a tweet, adding a message to her followers: "Today I published this op-ed in The Washington Post about the women who are channeling their rage about violence and inequality into political strength despite the price of coming forward. From college campuses to Congress, we're balancing the scales."

When she hit that tweet button, she also republished the headline, which was included as part of the link to the article.

In the jury instructions given by Fairfax County Circuit Court Judge Penney Azcarate, jurors were told determine whether Heard "made or published" three statements – one of which was the headline, republished by Heard through a tweet.

“Merely linking to an article does not amount to republication but adding content to a linked article may constitute republication,” Azcarate wrote. She told the jury they must determine “whether any added content was intended to reach a new audience.”

Ironically, Heard's tweeted message, which she wrote, was not among the statements that Depp's legal team contended were defamatory. But the headline, which was not written by Heard, was found to be defamatory because the "Aquaman" actress republished it to a new audience. In so doing, jurors found, she became liable for defamation.

Actor Johnny Depp waves to supporters as he departs the Fairfax County Courthouse in Fairfax, Va., on May 27, 2022. (AP Photo/Craig Hudson)

While the circumstances differed, Depp, 58, was also found to have defamed Heard for something he didn't say.

Specifically, the jury decided that a published remark by one of Depp's attorneys, Adam Waldman, defamed Heard. Expert witnesses called by legal teams for both actors testified about the impact – or lack thereof – of Waldman's remarks on Heard's reputation. In making their decision, the jury, guided by the judge's instructions, decided Waldman was acting as an agent for Depp.

Depp's lead lawyer, Ben Chew of Brown Rudnick, said he was not yet sure whether there would be an appeal of that part of the verdict.

Heard's lawyers, on the other hand, are talking about appeal. Her lead attorney Elaine Bredehoft acknowledged the tweeted headline will be among the issues raised on appeal.

In an interview last week, Bredehoft described the caselaw governing this avenue of social media as “thin."

Perhaps worse, there's a lack of public understanding about the risks of social media use.

"People are not aware that if they retweet something they could be held liable for the contents of the tweet, including being hauled into court," said Katie Fallow, senior counsel at the Knight First Amendment Institute at Columbia University. "For myself, it is not settled law."

While Depp versus Heard is about two Hollywood stars, the issue extends to politicians – including the wave of public officials suing media companies, journalists or even private citizens. In a 2021 ruling, the Eighth Circuit revived a defamation lawsuit filed by former Congressman Devin Nunes. The St. Louis-based federal appeals court found that journalist Ryan Lizza, who was already on notice of his article's alleged defamatory implication, reached a new audience by publishing a tweet and a link to the article.

But is everyone held to the same standard? Must everyone investigate the reliability of an article before retweeting?

"Some of those decisions about liability are public policy choices," Fallow said. "It seems like they [lawmakers] need to parse out where the responsibility should lie."

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