You Picked a Fine Time to Defame Me Lucille

Suing Your Ex for Defamation

Over the course of my nearly ten years practicing in defamation and privacy law, I have been asked on numerous occasions if it is possible to file suit against a former spouse for defamation. This question has recently popped up with a fervor due to the widespread publicity of the Johnny Depp vs. Amber Heard trial. Although every situation is unique, here are some factors that you should consider before deciding to pursue litigation against your ex.

Litigation Privilege

In the late 18^th century, The Code Duello, or the “rules of dueling,” was developed to cover the historical practice of resolving disputes through physical violence. Despite the drafters’ best attempts to “civilize” dueling, it continued to be a bloody and chaotic business, and society eventually determined that disputes involving honor or any other offense to person or property, would be better handled by the civil courts. However, for the civil courts to act as a venue for resolving controversy in a just manner, both parties would need to be free to voice their side of the story — they both would need “their day in court” without fear of future reprisals that would only extend the controversy rather than resolve it.

This is the purpose of the litigation privilege, which grants a type of immunity to the parties and their attorneys for certain acts and statements made in connection with the pursuit of litigation. For example, if the opposing party was to say on the stand during your divorce trial, “ My spouse works as a horse thief I tell you!” that statement would be privileged, and you could not sue your ex later for making a defamatory statement. I would note that, although you may not be able to sue your spouse for defaming you during the trial, if your spouse is making defamatory statements about you during the course of the divorce, particularly to third parties, you should discuss with your attorney the possibility of seeking an order from the court restraining that malicious conduct.

Q:  Why didn’t the litigation privilege stop Mr. Depp from pursuing a claim against Ms. Heard? 

           A:  The statements that Mr. Depp complained about being defamatory were made by Heard in an op-ed published in the Washington Post.  The statements in question were clearly not made in connection with the pursuit of litigation, and therefore Ms. Heard did not have immunity from suit in making those statements.

Prospective Damages

The old children’s rhyme, “sticks and stones may break my bones, but words will never hurt me,” is obviously not true. Defamatory statements can injure your reputation in the community and, if they result in loss of business opportunities, inflict monetary damage.  There are two types of relief a litigant can seek in a defamation case; a) injunctive relief and, b) monetary relief. If your request for injunctive relief is granted, the court will issue an order that requires the other party to cease making the defamatory statement(s). If your request for monetary relief is granted, the court will order the opposing party to compensate you for your damages.

Even if your former spouse has made statements that are defamatory, in Tennessee you still must be able to prove actual injury in order to obtain compensation for your damages. Statements made by a former spouse may be embarrassing or even infuriating, but often they do not result in actual damages such as a lost contract for business, termination from your job, etc. Given the debilitating financial effect a divorce has on most people, serious thought must be given, despite how angry you may be over what your ex has said, whether it really makes sense to engage in a lawsuit that, at the end of the day, could provide you with little if any recompense.

Q:  Why were damages not a barrier to Mr. Depp? 

A:  First, Mr. Depp’s suit was not filed in Tennessee, but rather in the Commonwealth of Virginia where the Heard op-ed had been published. Although I am not licensed to practice law in Virginia, it became very clear during the trial that Virginia does not require proof of actual injury in order to obtain compensation. In certain situations, one of them being where the defamatory statement would prejudice a person in his profession or trade, there is a presumed injury due to the very nature of the words themselves. Even though proof of actual injury was not required (and damages could have been left up to the jury to determine), Mr. Depp was able to show that he lost at least one film contract and several million dollars due to Ms. Heard’s defamatory statements in her op-ed. 

Anti-SLAPP Statutes

When it comes to who should pay the legal fees associated with litigation, the “American Rule” requires both sides—the plaintiff and the defendant—in a court case to pay their own legal fees, no matter who wins the case. The rule was established to ensure no one would be hesitant to file a legitimate court case due to the fear of having to pay for legal fees on both sides. In recent years, concerns over this rule acting as an incentive for “bullies” to file suits against those exercising their fundamental Constitutional rights (such as the right to free speech) have lead to the passage of state statutes barring “strategic lawsuits against public participation,” or “Anti-SLAPP” statutes.

Among other things, Anti-SLAPP statutes alter the American rule so that plaintiffs found to have filed a SLAPP suit can be held liable for the legal fees of the defendant in defending against the suit. Whether Anti-SLAPP statutes have effectively leveled the playing field, or now given those who want to defame others an upper hand in litigation by adding payment of legal fees to the plaintiff’s risk equation in filing a suit, remains a hotly debated question. In Tennessee, the Anti-SLAPP statute is titled the “Tennessee Public Participation Act” or “TPPA”.  Interestingly, to date only state courts have been affected by Anti-SLAPP with Federal courts remaining unaffected by the statutes.

Q:  Why was Anti-SLAPP not a factor in the Depp vs. Heard case?

A:  To some degree it may have been, as Virginia does have an Anti-SLAPP statute albeit it is considered a “weak” one, as it does not have, as traditional anti-SLAPP statutes generally provide, a mechanism to force a hearing to try and throw out a SLAPP lawsuit or stay discovery pending determination of whether the suit was in violation of the anti-SLAPP statute. Although Mr. Depp was at risk up until the final hearing of having to pay Ms. Heard’s legal fees in defending his suit, in the final analysis he obviously felt this risk was worth having his case go to a jury of his peers.

Summary

As discussed above, litigation privilege, prospective damages, and anti-SLAPP statutes are just a few of the factors you should consider before contemplating filing a defamation suit against your ex. As demonstrated by the case of Depp vs. Heard, defamation cases can be factually and legally complex, and it is very important that you work with an experienced legal team that understands defamation law and how to best bring your case before the court.