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How Jonny Depp’s victory can affect your Family Law case

by | Jul 1, 2022 | Divorce, Restraining Orders

In California, defamation of character is defined as publishing a false statement of fact that causes harm to the other party’s reputation, property, business, career and/or good standing in society. Defamation can take place in two ways: slander or libel. Slander is making defamatory statements orally through words, while libel is making defamatory statement through print or by publication. Additionally, California has “defamation per se” which is a defamation suit without the need for the defamed person to prove damages as they are presumed to have occurred. Defamation per se is common in cases of allegations pertaining to a person’s personal and professional character.

Defamation actions brought by a public figure involve the normal elements of a defamation suit, as outlined above, but also carry the element of “actual malice.” Actual malice means that the person accused of making the defamatory statements must have done so with knowledge of their falsity, or with reckless disregard of the truth.

Possible defenses to a defamation lawsuit include the following: truth, opinion, and privilege. When a statement is true there is no defamation. Regardless of how much damage may have been done to your reputation, truth is an absolute defense to defamation. If a statement is an opinion, there is likely no defamation, but the context in which the statement was made and by whom will be considered. The last defense is privilege, which covers statements made in a courtroom, by judges overseeing a trial and legislators on the legislative floor.

So, what happens when one party brings a defamation suit against the party who sought a restraining order against them? Is it justified or it is retaliatory? Unfortunately, since the highly publicized Johnny Depp v. Amber Heard lawsuit, courts have seen a rise in defamation suits being brought in response to restraining orders being issued.

Unmerited defamation lawsuits have been weaponized by parties to regain the control and power having a restraining order placed against them takes away. They are used by the abuser as a way to regain control of the narrative and frame themselves as the abused instead of the perpetrator of the abuse. Though true that a restraining order carries a negative stigma, that does not mean a defamation suit is called for, especially not if there is merit behind the need for issuing a restraining order in the first place. Weaponizing a defamation action as retaliation is a manipulation tactic employed by abusers in that case to regain the upper hand by framing themselves as the victim, and casting doubt on the validity of the abused party’s words and recollection of events leading up to seeking the restraining order.

Retaliatory defamation suits often come into court with party’s using California’s defamation per se statute as way to assert defamation without having to exert time and money into proving damages done to them. It is a clever way of manipulating the court and opens a new avenue of harassment toward the abused party by furthering the emotional, financial, and social costs of litigation. Threatening or following through on a defamation suit after being issued a restraining order, if it is without merit, is frivolous and an intimidation tactic meant to silence the abused.