The court of public opinion aside, the notorious case of Johnny Depp v. Amber Heard might have ended very differently had it played out on an Ontario stage.
That’s because provinces like British Columbia and Ontario have “anti-SLAPP” legislation, which could have eliminated Depp’s lawsuit in the first act.
Ontario’s 2015 anti-SLAPP law protects free speech on matters of public interest. If a lawsuit appears to limit free expression on a matter of public interest, the defendant can bring a quick motion to dismiss the action. This blocks deep-pocketed interests by shutting down opposing voices on the pretence of defamation claims, effectively gagging valid criticism.
In Ontario, anti-SLAPP motions are heard quickly, usually within 60 days. If Heard won she would have all her legal costs covered by Depp. If she lost, then it is unlikely she would pay any costs. It would have been a win-win for Heard.
Case law is against Depp. In Joshi v. Allstate, the employer launched a defamation action against an employee whistleblower. It was dismissed without trial with the court awarding more than $95,000 in costs.
These outcomes are not uncommon under anti-SLAPP legislation, which puts a heavy burden on those claiming defamation if public interest is at stake.
To save his lawsuit, Depp would have to show a judge (notably not a jury):
a) the proceeding has substantial merit, and,
b) Heard has no valid defense; and,
c) the harm of Heard’s article is serious enough that the public interest in permitting the outweighs the public interest protecting that expression.
Conversely, in Ontario, Heard need only prove she wrote on a matter of public interest. Correctly or not, maliciously or not, Heard’s position of her she was a “public figure representing domestic abuse” would, in my opinion, meet the test of public interest, especially given the high profile #metoo discussions happening then.
Further complicating Depp’s case, the Supreme Court of Canada in Platnick v. Bent (2020) found that to meet the “no valid defense” requirement, the burden is on the party suing for defamation to refute each and every defense put forward.
However, no part of the test posed by anti-SLAPP law allows a claim to proceed just because it has merit. All claims that limit public expression can be thrown out, even if someone was, in fact defamed. That’s a big mountain to climb, legally speaking.
Then, there’s weighing the harm suffered between parties. Courts look at a number of factors set out in the Platnick v. Bent Court of Appeal decision, such as if the plaintiff has threatened litigation to silence critics, a financial or power imbalance between parties, whether revenge was a motive and if the damages suffered were minimal or nominal.
Again, Heard held the cards. Depp already sued over similar statements published in the UK Sun and lost. Depp’s net worth far exceeds Heard, their marriage ended acrimoniously and appears to be a prime reason for the lawsuit, suggesting revenge and retribution.
Still, this is hypothetical. We can never be sure an anti-SLAPP motion would have prevailed or if the case would have proceeded to trial. That isn’t to say that defamation cases cannot succeed. Recently, the Ontario Superior Court has allowed several claims to continue, one for example, dealing with malicious and anonymous online reviews.
This legal protection should not encourage anyone to go out and write malicious statements. Hopefully, however, it might alleviate concerns for those in Ontario and British Columbia who were shocked by the result in Depp v. heard.