The question of jurisdiction in the case of Depp v Heard

One of the more disturbing of the many disturbing elements of the Depp v Heard defamation trial, is the manner in which Amber Heard was dragged into the jurisdiction of the State of Virginia in the complete absence of any definable relationship with that State. This is the first point of appeal that has been filed by Amber Heard in response to her loss at trial.

The questions for the Court of Appeal that pertain to this specific matter is whether trial judge Penney S. Azcarate erred when she ruled that her court had the jurisdiction to hear Depp's defamation law suit.

Azcarate essentially ruled that her court had jurisdiction on the basis that the publisher of the alleged defamatory material uses computer servers based in the State of Virginia. It is relevant to note that Azcarate denied Amber Heard's motion to have this matter determined by the Supreme Court of Virginia.

It is only now through the avenue of an appeal process that Judge Azcarate no longer has judicial oversight of that this matter can now be appealed by Amber Heard. I believe that Judge Azcarate was wrong under law, her ruling had no basis in law and that Amber Heard should never have been subjected to the appalling abuse we were all forced to witness.

To support my view I rely upon the wording, context and application of the applicable law in question which is found in the legislative code:

§ 8.01-328.1. When personal jurisdiction over person may be exercised.

A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's:

3. Causing tortious injury by an act or omission in this Commonwealth;

4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;

As Depp's lawsuit was based on a claimed tortious injury by an act of defamation the consideration falls under 3. in the code under the circumstances described in A.

B. Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth. For purposes of this subsection, "use" and "computer network" shall have the same meanings as those contained in § 18.2-152.2.

It is evident that Azcarate is relying on the wording of B. Using a computer located in the Commonwealth shall be considered an act that has taken place in the Commonwealth. So it appears that Judge Azcarate is essentially saying that Amber Heard, through her agent the Washington Post, committed the act at the centre of Depp's suit using servers in Virginia that the Washington Post relies upon and so therefore the act was committed in the Commonwealth.

So are there any inherent flaws to be found in the reasoning Judge Azcarate applied to her judgement? Let me count the ways. The first step is to examine the wording of the legislation under A. and 3.

A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person's:

3. Causing tortious injury by an act or omission in this Commonwealth;

For Azcarate to meet the requirements in A. and 3. she is required to show that Amber Heard directly committed an act or an act was committed by Amber Heard's agent that is subject to a claim of tortious injury in the Commonwealth. This is where we apply what the facts state Amber Heard actually did.

In 2018 Amber Heard was invited to be an ambassador for the ACLU described in the manner provided by this statement by the ACLU.

"In 2016, Ms. Heard pledged to donate $3.5 million over 10 years to the ACLU. Two years later, in 2018, the ACLU invited Ms. Heard to become an ambassador and to work with us on an op-ed to bring attention to the issue of sexual assault and domestic violence issues; she agreed. Through her ambassadorship, Ms. Heard supported our advocacy for gender justice issues, a cause that has long been central to our mission at least since Ruth Bader Ginsburg headed the ACLU’s Women’s Rights Project."

The op-ed in question was published by the Washington Post on December 18, 2018 evidently in reliance on the presence of servers based in the Commonwealth. For Azcarate's ruling to hold under law she must show a relationship between Amber Heard and the Washington Post's servers.

As Amber Heard has no control over the Washington Post's IT infrastructure it is not possible to argue that Amber Heard acted directly in an action that occurred in the Commonwealth. Therefore Azcarate can only rely on the Agent component of the legislation. That is to say that the Washington Post acting as an agent of Amber Heard and acting under her authority performed an act in reliance on the Washington Post's servers based in the Commonwealth.

So this is where we play a game called Identify the Agent. First we must determine what an agent actually is under US law.

Agency law is the common law doctrine controlling relationships between agents and principals. A principal-agent relationship is created when the agent is given authority to act for the principal. An agreement made by an agent is binding on the principal so long as the agreement was within the authority actually granted to the agent or reasonably perceived by a third party.

Source Legal Information Institute

So we are looking at Amber Heard to ACLU to Washington Post to Servers as the structural chain in the relationships. The ACLU states that as an agency it invited Amber Heard to become an ACLU ambassador so therefore Amber Heard was acting as an agent of the ACLU.

The Washington Post published the article under the authority of the ACLU and so therefore the Washington Post is an agent for the ACLU. This means that Amber Heard and the Washington Post are both agents of the principle, the ACLU.

In addition to actual authority, a principal may be bound by the actions of an agent if apparent authority existed.

Apparent authority: An agent has apparent authority when, despite no existing authority, a third party reasonably infers that someone is authorized to act on the principal’s behalf due to the conduct of the principal. Unlike actual authority, a principal can be bound by an agent’s act made with apparent authority even if they explicitly stated that the agent could not do that act. Furthermore, a person possessing a widely recognized title like Hiring Director has apparent authority to accomplish anything a reasonable person would believe that title entails. An agent acting with apparent authority is known as an ostensible agent.

Additionally, principals can be held liable for the torts of their agents under the doctrine of vicarious liability. A principal is always liable for torts committed while the agent completes their official responsibilities.

It is clear that there is no direct action that Azcarate can rely upon and it is equally clear that the Washington Post is not the agent of Amber Heard.

"the ACLU invited Ms. Heard to become an ambassador and to work with us on an op-ed to bring attention to the issue of sexual assault and domestic violence issues;"

The evidence is undeniable. Amber Heard was invited by the ACLU to work with, the ACUL on an ACLU initiated project. Upon completion the ACLU under its own pejorative went to the Washington Post and had the article published. The ACLU is both principle and overall decision maker in the process that occurred.

There is no direct relationship between Amber Heard and the Washington Post, both are agents of the same principle and Amber Heard took no direct action in the publication of the post outside of her own ACLU stated duties in her role as ambassador.

Judge Azcarate has essentially stepped well outside of the legal definition of an agent and applied non factual considerations when considering the structure of the legal relationships between the parties in question. Azcarate has essentially removed the ACLU from the relationship structure and reassigned Amber Heard's status as agent to principle. Additionally Azcarate has ruled that there was a direct relationship between Amber Heard and the Washington Post which is reasoning that sits in a breathtaking contradiction with the proven facts that apply in the application of the legislation.

That is not all. The application of the presence of the Washington Post's servers in the Commonwealth has also being completely misapplied.

B. Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth. For purposes of this subsection, "use" and "computer network" shall have the same meanings as those contained in § 18.2-152.2.

§ 18.2-152.2. Definitions; computer crimes.

Noting the focus on "computer crimes", which is not a crime Amber Heard is accused of, it seems evident we are already facing a question of relevance. However it is how the "use" of a computer is defined that the question of relevance is answered definitively.

As we know Judge Azcarate is ruling that the presence of the Washington Post's servers in the Commonwealth grants her court jurisdiction and she is evidently relying on:

B. Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth. For purposes of this subsection, "use" and "computer network" shall have the same meanings as those contained in § 18.2-152.2.

The application of B under Code § 8.01-328.1. is wholly reliant on the definitions provided by Code § 18.2-152.2. that states:

A person "uses" a computer or computer network when he attempts to cause or causes a computer or computer network to perform or to stop performing computer operations.

The wording clearly places a requirement that a person "uses" a computer when they or their agent carries out a function on the computer using direct access to that computer. Amber Heard did not have direct access to the servers and so therefore did not "use" the servers at any level let alone in the Commonwealth.

It is equally clear that the party that does have direct access and control over the servers is the Washington Post who is not the agent of Amber Heard but is in fact the agent of the ACLU.

Despite the fact that the ACLU was the principle for the agents Amber Heard and the Washington Post and the Washington Post was the publisher of the article, neither of those parties were named in the suit. Notably as the principle the ACLU is responsible by law for the actions of Amber Heard but Amber Heard is not responsible by law for the actions of the ACLU.

This lends weight to the view that Depp raised his lawsuit for the specific purpose of targeting Amber Heard as an ongoing process of abuse turning to DARVO to try and destroy what Amber managed to salvage and rebuild on after a great deal of suffering at Depp's hands.