A unanimous three-judge federal appeals panel has blocked a newspaper company’s procedural motion to dismiss a lawsuit brought by a straight porn diva over the use of her picture to illustrate an article about HIV in the adult film industry.
The panel of judges from the Ninth Circuit Court of Appeals affirmed District Judge George H. Wu’s decision denying what is known as anti-SLAPP motion by Associated Newspapers LTD, publishers of Daily Mail Online, which is being sued by “Danni Ashe,” whose real name is Leah Manzari. The porn star, who asserts, without contradiction from Associated Newspapers, that she is not HIV-positive, claimed the publication would lead readers to believe she was infected, and sought $3 million in damages for libel and “false light” invasion of privacy.
The Ninth Circuit agreed with Wu that Manzari was likely to prevail on the merits of her claims, in a decision written by Judge M. Margaret McKeown.
Daily Mail Online faces suit it recklessly used stock photo in exposé
SLAPP stands for “strategic lawsuit against public participation,” and according to the legislative history of California’s anti-SLAPP statute, it was passed in response to “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” The law is intended to protect open discussion on issues of public importance from nuisance suits intended to discourage free speech. When faced with an anti-SLAPP motion, the burden falls on the plaintiff to establish that “there is a probability” they will prevail, a higher standard than typically required to pursue a claim.
The Daily Mail Online, in 2013, published a story about a “shutdown of the Los Angeles-area porn industry” after a female performer, whose identity was not disclosed, tested positive for HIV. The article’s author, James Nye, asked the photo desk to supply “some pictures representative of the pornographic film industry that contained no nudity” to illustrate the article and was provided with several “stock” photographs selected from the Corbis Images database. One of the images used was labeled as follows: “Soft porn actress Danni Ashe, founder of Danni.com, poses in front of a video camera connected to the Internet in one of her studios in Los Angeles in 2000.”
In describing Nye’s article, McKeown wrote, “The headline read ‘PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER “FEMALE PERFORMER” TESTS POSITIVE FOR HIV.’ After a few lines of text, the article contained a picture of Manzari lying suggestively across a bed with ‘In Bed With Danni” written in neon lights behind her. Under her photograph was the caption: ‘Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV-positive.’”
The article stated that “the performer was not immediately identified,” and “stock” photos depicting other porn actresses were also included. Neither Danni Ashe nor Manzari was named in the text of the article.
Manzari’s attorney contacted Daily Mail Online when the article was published, demanding the photograph be removed. Daily Mail Online made the change on its website, but the damage had been done, according to Manzari. The original version of the article had been syndicated, and she claimed that a Google search returned the original version with her picture from websites around the world. Worse, the version that showed up on a search screen would have the headline and her photograph, without any of the explanatory text about the actress being “unknown.” As a result, she alleged, most of those who saw the article online would conclude that “Danni Ashe” was HIV-positive.
Daily Mail Online argued this was a frivolous lawsuit intended to chill its publication of a newsworthy story, and that the stock photograph was an appropriate illustration. Its attorneys pointed out that the publication never named Manzari or “Ashe” in the article or stated that the model in the picture was HIV-positive. They also pointed out that the article reported on an issue of public interest, and was thus entitled to strong First Amendment protection.
“There is no serious dispute that the libel and false light suit targeted speech protected by the anti-SLAPP statute,” wrote McKeown, so “the burden shifts to Manzari to show a reasonable probability of prevailing on the merits.”
Daily Mail Online also argued that Manzari, in the guise of Danni Ashe, should be treated as a “public figure,” which means there would be liability to her only if it was shown that the picture had been published with “actual malice” — that is, with knowledge that it communicated a false meaning or with reckless disregard as to the truth.
Libel law traditionally presumes “actual injury” if a person is falsely depicted as having a “loathsome” disease, and sexually-transmitted diseases such as HIV generally fall into that category, or is falsely described in a way that would be harmful to their standing in the profession. The court’s opinion subscribes to this view regarding HIV implicitly, without any real discussion.
The court instead focuses instead on other legal issues, including whether it makes a difference whether Manzari is a “public figure.” Here, the panel concluded that although Danni Ashe’s fame might be somewhat specialized, she nonetheless qualifies as a public figure, pointing to press references to Ashe supplied by Daily Mail Online. As a result, Manzari would have to show she could probably prevail on her claim that the false representation was made with “actual malice.”
The court rejected Daily Mail Online’s argument that the article never mentioned Danni by name, since the picture itself had her first name in neon lights as background to her image.
“The bold headline and its content, juxtaposed with her photograph and yet another caption under her picture that said the industry was ‘shocked’ that a ‘performer had tested HIV positive,’ was sufficient for a reasonable reader to infer that Manzari was the performer who had tested positive for HIV,” wrote McKeown, treating this as an “implied” defamation case.
Regarding the question of “actual malice,” it was clear that the Daily Mail Online had done nothing to determine whether the person in the photograph, who was clearly a porn actress, was HIV-positive.
“This case rests on the ‘reckless disregard’ prong of actual malice,” McKeown wrote, adding, “We hold that Manzari has raised sufficient factual questions for a jury to conclude that the Daily Mail Online acted with reckless disregard for the defamatory implication in its article on the Los Angeles porn industry shutdown. Manzari’s evidence is sufficient to support her claim that the Daily Mail Online placed her photograph in the article, juxtaposed with the incendiary headline and caption, knowing or acting in reckless disregard of whether its words would be interpreted by the average reader as a false statement of fact.”
The court gave little weight to the publisher denying it intended to communicate to readers that Manzari was HIV-positive.
“If all a publisher needed to do was to deny the allegation, all implied defamation suits would be dead on arrival,” McKeown wrote. “If, for instance, a newspaper ran the headline: ‘High Profile Figure Accused of Murder’ alongside a photograph of the Mayor of New York City, or ‘Industry Shocked that Grocery Sprayed Veggies with Pesticide’ alongside an image of a nationally-known grocery chain, the publishers would be hard-pressed to plausibly claim that they had simply selected a ‘stock’ photograph. The same holds true for a story about the pornography industry, featuring a picture of a world-famous pornographic actress with her name written in neon lights.”
McKeown concluded, “This sort of willful blindness cannot immunize publishers where they act with reckless disregard for the truth or falsity of the implication they are making.”
Though Daily Mail Online could appeal, it may well instead decide to offer a settlement to Manzari.
