Over the last few weeks, it has been almost impossible for anyone to avoid the stream of updates, headlines, bombshells and memes that have flowed from a small court in Fairfax, Virginia. We are of course referring to the latest Hollywood trial de jour, the defamation claim brought by Johnny Depp against his ex-wife, Amber Heard.
Despite the very serious nature of the claims made by Heard in her Washington Post article, the speculation, gossip, comedy sketches and innuendo that have arisen out of litigation have had the serious effect of trivialising not only domestic violence, but also the importance of reputation management, and the implications of its destruction after years of hard work building that reputation.
Away from the glitz and glamour of Hollywood and closer to home in the Royal Courts of Justice, London, what has been dubbed as the ‘Wagatha Christie’ trial has concluded, which involves a claim in defamation brought by Rebekah Vardy against Coleen Rooney.
All the parties involved in these two defamation claims will no doubt have considered the potential adverse risks that flow from a case proceeding to a trial, including the possibility of further reputational damage arising from the disclosure of personal matters in the public domain, especially Johnny Depp and Rebekah Vardy, who brought their respective claims.
The impact of the ‘Streisand effect’
This is often referred to as the ‘Streisand effect’, named after the singer Barbra Streisand, whose attempt to suppress a photograph of her home in Malibu, California, inadvertently drew greater attention to the image. The claim was dismissed, but the publicity it generated exacerbated the harm Barbra Streisand was trying to avoid.
The term ‘Streisand Effect’ was therefore coined to describe attempts made by a party to supress potentially damaging information (whether that be a publication, photo, video, etc), which has the unintended consequence of magnifying its existence and the scope of its dissemination. Attempts to suppress information are often made through cease and desist letters or injunctions, but instead of being suppressed, the information receives extensive publicity, such as on social media where a meme, a Tik-Tok or spoof song can be shared around the world with ease.
Context is key
The context of the words complained of, and the background between the parties behind a defamation claim, is important. The Court will take into account material that does not directly relate to the defamatory statement, and this explains why so much personal background information is often put into evidence.
The legal and evidential threshold to succeed in a defamation claim is high, so typically, the more information, history and context that can be provided, the better. An outwardly innocuous comment can be defamatory within a context known only to the intended recipient of the publication, or as a result of an inference or “reading between the lines” innuendo. It is for this reason that it is necessary to paint a picture of the relationship between the parties, and the people to whom the defamatory information was published, to get a better understanding of the context.
It is inevitable, therefore, that a risk of further reputational damage arises for both parties to a defamation claim, whatever the outcome.
Lessons to be learned
So what can be learned from the Depp / Heard and Wagatha Christie cases? In short, “having your day in court” may not be all it’s cracked up to be, especially if you may be called upon to tell a room full of strangers, and the wider public, intimate details about yourself.
This is the reality of a defamation claim. The necessity to examine the truth of an alleged defamatory statement means that more information will have to be disclosed to either support or contradict a claim, which may also be embarrassing or damaging to one’s reputation.
It is therefore always sensible to consider the options for trying to resolve a dispute before legal proceedings are commenced, whether by mediation or other Alternative Dispute Resolution means.
There are a number of advantages to this. The parties are more in control of the process and can negotiate the terms of a mutually acceptable compromise, instead of rolling the dice and allowing the claim to be decided at trial by a Judge. Defamation cases can understandably evoke strong emotions and having calmer heads to assist the direction and tone of the negotiation, perhaps with the assistance of an independent mediator, can be hugely beneficial. In addition, the terms of a negotiated settlement would normally be private and confidential between the parties, reducing the risk of further reputational harm arising.
What if you cannot reach a settlement?
However, a settlement will not always be possible, or desirable, particularly if there is a concern that this might result in a perception of wrongdoing, by one or other of the parties, in the public eye. This may be one of the reasons that leads to the conclusion that a claim should be pursued or defended, for a decision to be made by a Judge, which would be made public. All the implications should be considered, though and a ‘what will be will be’ attitude by the parties need to be moderated by the risk of further damaging their reputations, and that of their partners, friends, and families, who are involved as a witness, or one way or another in the matter.
Defamatory statements can be mortifying, and may indeed have a damaging impact on one’s reputation, but a cost and reputational benefit analysis ought to be undertaken as to whether that damage is currently contained, whether the statements will continue to cause further harm, or if the damage will be exacerbated by bringing a defamation claim.
This article originally appeared in ePrivate Client.