Depp v Heard: the perils of live-streaming and trial by TikTok

Following on from recent blogs on derogations from the principles of open justice and closed materials, we look today at the other side of that coin: wide-open justice.  At the time of writing, the US defamation case of John C. Depp II v Amber Laura Heard (CL-2019-2911) is just past its half-way point in Fairfax, Virginia.  Depp is suing his former wife over allegations of domestic violence.  The case is a sequel of sorts: in 2020 Depp unsuccessfully sued The Sun and one of its editors in London over similar allegations.  In Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 2911 (QB) Mr Justice Nicol found that the allegations were substantially true (see our blog here).  Depp’s Hollywood career has since been on hold.

Given Nicol J’s reasoned finding and the higher burden for a libel claimant in the US, you could be forgiven for thinking that armchair commentators would be cautious about predicting a Depp victory mid-trial.  However, if this is the case you are obviously not a TikTok user.

What has happened?

Unlike the English proceedings, the US trial is being live-streamed.  There has been a social media frenzy of TikTok and YouTube videos edited to show one party (in particular, Depp) or one lawyer (in particular, Herd’s lawyer Ben Rottenborn) in a particular way.  These videos, often accompanied by editorialised graphics and text, generally last anywhere from 20 seconds to 5 minutes and are stitched together from much longer sequences of footage released by the Court or are closeups of incredulous reactions following a statement or question.  They are highly selective, like misleading sports highlights, taking both evidence and questions out of context.  They are plainly designed to suit the publisher/creator’s agenda and/or to make money.

Most of these videos have been created by, or to pander to, Depp’s legions of supporters.  They push the narrative that Depp has outwitted Rottenborn during his cross-examination (or otherwise that Mr Rottenborn is incompetent).  The intrigue surrounding the trial, coupled with powerful social media algorithms, has ensured the videos have been viewed by millions.  It seems unlikely that the videos are a fair representation of what is actually going on in Court.  Indeed, legal reporting of the case has focussed on different aspects of the trial.

The consequences of live social media commentary

The lack of cameras in a court room does not prevent live social media commentary.  Stephen Yaxley-Lennon (known as ‘Tommy Robinson’)  was found in contempt of court in 2019 for a Facebook Live broadcast from outside the entrance of Leeds Crown Court (HM Attorney General v Yaxley-Lennon (Rev 2) [2019] EWHC 1791 (QB).  In that case, there were reporting restrictions in place which Yaxley-Lennon breached, but even without reporting restrictions any commentary that goes beyond a fair and accurate report of the proceedings risks liability for contempt.  The reason for this is to ensure that jurors and witnesses are not influenced by external material.

Trials should not turn on commentary provided by YouTubers.  Jurors are told not to research the parties or the issues themselves, and are, absent evidence to the contrary, trusted not to have done so.    However, this inevitably happens on occasions, normally only coming to light when a juror shares their research with the rest of the jury (by way of example, in the UK a solicitor juror was jailed for contempt of court last week for doing this).

With high profile cases like Depp v Herd, one doesn’t even need to actively conduct research.  A juror or witness is likely to unwittingly come across commentary simply by accessing their social media feed.  This raises a question about jury selection.  Does jury selection with a criterion of people ‘not on or using social media’ offend the principles of judgment by a fair representation of ones’ peers?  Does directing a jury to stay off social media for the duration of a long trial limit the type of people willing to serve on that jury?  The answer, clearly, is yes.  Limiting jury selection to those not using (or willing not to use) social media, will naturally remove great swathes of society from the pool of potential jurors.

In the UK, civil jury trials are relatively rare.  There has not been a defamation jury trial in the last decade, with section 11 of the Defamation Act 2013 creating a presumption against jury trials (of note, actor Laurence Fox has recently applied for a defamation trial by jury).  However, there are 200-300 jury trials a week in the Crown Courts.

In cases not involving a jury, judges are less likely to be affected by such a requirement.  That does not, of course, speak to how witnesses may behave differently having seen such content, which has already been an issue in the US Depp trial.  On 14 April, Gina Deuters, who gave evidence about Depp’s use of drugs and alcohol, had her testimony stricken from the record after confirming that she had watched ‘clips’ of the trial online in the week preceding her evidence (as reported here).  There may also be a temptation for a witness to try to modify their behaviour (if not necessarily their evidence) to avoid (or perhaps encourage) social media coverage.  Many prospective witnesses will be deterred from participating if they know their evidence will be broadcast and potentially manipulated.

Cameras in the UK courts

In England and Wales whilst we have live streams of Supreme Court and some civil Court of Appeal hearings, we generally have not seen the same social media reaction.  That is perhaps due to the less salacious content of those hearings than the ‘do not republish’ banner on UK streams.  It is rare for appeals to have live witness evidence.  As such, virtually all streamed hearings are confined to submissions or rulings concerning points of law and likely to be too dry for social media (even when the hearing concerns a contentious subject like Article 50 and the prorogation of parliament as in Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5 and Miller, R (on the application of) v The Prime Minister [2019] UKSC 41).

Final thoughts

This topic warrants careful thought and analysis.  Other than the potential reach, live streaming legal proceedings is only significantly different to the public gallery in that it provides electronic files capable of manipulation (either by capture or re-recording).  If a technological solution was available that prevented the preservation, editing, and republication of the stream, this would render the use of cameras less controversial.

Unfortunately, even where technology is used to prevent republication of protected content already (such as dynamic blocking orders for football broadcasts, watermarks, and screen ‘scrambling’ overlays) it has become apparent that pirates, streamers, and (to a lesser extent) hackers are more innovative and creative than the companies creating the barriers, and are easily able to circumvent those measures.

In our blog here, we consider the expanded use of cameras in the UK's civil courts.