Defamation generally requires the balancing of two competing rights: the right of the claimant to protect their reputation, and the right of the defendant to freedom of expression. However, defamation claims for sexual or domestic violence allegations have, or at least should have, an added yet largely unexplored dimension: preventing defamation from being used as a sword and preventing survivors of domestic and/or sexual violence from being silenced.
Amber Heard filed for divorce from Johnny Depp in 2016, citing abuse by Depp. UK tabloid, the Sun, called Depp a "wife-beater" after which he brought a libel suit against the Sun - and lost, as a UK High Court found 12 of 14 claims of domestic violence to be true. However, while not many may be aware of the UK case, much more widely known is the recent televised defamation case Depp brought against Heard in the US. In this case, Depp sued Heard for $50million for writing an op-ed Heard wrote for the Washington Post in 2018, where she did not name Depp but called herself a "public figure representing domestic abuse". Heard counter-sued Depp for $100million. The case was televised and live-streamed on multiple apps as the laws of Virginia, where the case was being heard, place the discretion on the presiding judge to allow coverage of civil suits, including them being publicly broadcasted.
The public broadcasting allowed the court of public opinion to also weigh in on the case, with the result that it was vociferously picked apart online with people choosing sides, some being firmly #TeamDepp or #TeamHeard, and giving their "expert opinions" on various matters. What is disappointing, albeit not surprising considering the rampant misogyny women face, was the way Heard's entire testimony of abuse was subject to ridicule and derision online. This was largely due to her being an imperfect victim in light of the now infamous audio clip where she can be heard telling Depp he wouldn't be believed as a victim of abuse because he is a man. Memes were made branding her a liar and mocking and nitpicking her mannerisms, with even seemingly innocent actions such as wiping her nose with a handkerchief portrayed as her sniffing cocaine.
This case may set a dangerous precedent as survivors of domestic and sexual violence will now hesitate to come forward as they now know the public's attitudes and inability to realize the gravity of domestic violence, as well as the immense scrutiny they would be under if they do come forward. Even if their cases aren't televised like Depp v Heard, there is an ever-present threat that even if they do disclose the abuse they have suffered, their abuser may sue them for defamation.
In a world where sexual and domestic violence is widely underreported across all cultures, countries, ethnicities, genders and age groups, the #MeToo Movement united survivors across the globe, providing them courage and empowering them to share their stories too. The MeToo movement gained global popularity on social media after powerful, wealthy and influential Harvey Weinstein was accused of sexual abuse. After one woman came forward, a chain effect started and others found the courage to share their own experience of abuse. Women stood together in solidarity against sexual violence. Over 80 women came forward against him and allegations ranged from rape to sexual harassment over the span of three decades, highlighting just how common and vastly underreported sexual harassment and assault are. Soon, other influential predatory men in Hollywood were also being accused and under the simple words of "#MeToo". The movement then spread outside of the celebrity sphere in the US to other countries and politicians around the world. A common theme of the cases within the #MeToo movement is a power imbalance between the two parties. There is often a powerful abuser who either forces or coerces the weaker party into sexual acts and then uses his influence to keep the victim silent. It is the existence of this power imbalance which has throughout history allowed men to get away with violence. Today, social media is one avenue for women to raise their voice against injustice and reclaim power. The very real possibility of being embroiled in a defamation trial will be nothing short of a strong impediment and will make survivors think ten times before they do.
This verdict has harmed the #MeToo movement as opponents of women’s rights advocates who have been waiting for opportunity to pounce on and attack the #MeToo movement have felt validated and clutched this case tightly as some sort of proof of the flaw of the #MeToo movement, which they perceive to be an attack on all men. There argument is often that the #MeToo movement has failed because men can be victims of domestic violence too. However, they don't realize that the #MeToo movement is not gender specific. Men can be victims of domestic violence. Period. This is a full sentence on its own. When one adds "too" at the end, like many "Men’s Rights Activists (MRAs)" or "incels" do, all this does is to derail the conversation from the overwhelming violence women face at the hands of men.
It is painfully clear that the use of defamation to combat sexual/domestic violence claims will serve as a tool to silence survivors, particularly considering the very private nature of sexual and domestic violence which might make proving them difficult. Carefully thought mechanisms need to be put in place, and policy decisions then need to be made, on whether the right of an individual to be protected from false accusations of violence outweighs the right of a survivor of violence to speak up about their experience of abuse.
While the vast majority of sexual and domestic violence cases go unreported, even where a woman does report, the perpetrator often goes unpunished or gets a light sentence, the prime example being Brock Turner. Does a woman, who knows that her abuser is not likely to be punished even if she reports him, then not deserve at the very least to name her abuser - sisterhood, knowing that someone's listening and that she is not alone?
Written by Khadeeja Ahmad