Daily Mail Must Defend Porn Star’s Libel Suit

     PASADENA, Calif. (CN) — The Ninth Circuit ruled Monday that a former porn star can sue a tabloid publisher for defamation over a story she says falsely implied that she was HIV-positive.
     Leah Manzari became famous under her professional name Danni Ashe as a nude model from 1995 to 2004, earning millions of dollars through her website.
     According to court records, she was “one of the most well-known and popular soft-core porn actresses in the world” before retiring from adult entertainment in 2004.
     In 2013, the Daily Mail Online, a British tabloid published by Associated Newspapers, ran a story with the headline: “Porn industry shuts down with immediate effect after ‘female performer’ tests positive for HIV.”
     The first picture in the story was a photograph of Manzari posed provocatively on a bed with “In Bed With Danni” in capitalized neon letters behind her, along with the caption: “Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive.”
     Manzari claimed the image and the text combined to falsely imply that she was the performer with HIV.
     The Daily Mail removed the photograph after her attorney sent a cease-and-desist letter. Manzari brought a lawsuit for $3 million in damages, which the Daily Mail moved to strike under the California Anti-Strategic Lawsuit Against Public Participation, or SLAPP, statute.
     The Ninth Circuit on Monday upheld the lower court’s denial of the motion to strike, in an opinion written by Judge Margaret McKeown.
     “Defamation claims, which arise out of state law, are significantly cabined by the First Amendment, especially when the plaintiff is a public figure, like Manzari. In order to prevail, Manzari must show that the Daily Mail acted with actual malice,” McKeown wrote. “Defamation by implication claims pose an additional hurdle: Manzari must first show that the article is reasonably understood to imply the defamatory statement, and she must then show that the Daily Mail published the article with knowledge of the false implication or reckless disregard for the truth of what the article implied.”
     The judge found that Manzari cleared those hurdles. California law recognizes that defamatory statements can be either stated or implied, and the implication was clear in Manzari’s case, McKeown wrote.
     Even though the article mentions an unidentified “female performer” and does not actually say Manzari is said performer, the size and arrangement of pictures and text would imply to a reasonable reader that Manzari is the performer, the judge said. This implication was especially clear given how the article was disseminated online, according to Monday’s ruling.
     “Manzari introduced multiple screen-shots from the Internet revealing how the article appeared in a number of search engines and other on-line news platforms,” McKeown wrote. “In example after example, the posting is truncated with the headline followed directly by the ‘Danni’ photograph, sometimes including a caption, but without the rest of the article to provide any further context for the image.”
     As for actual malice, the Ninth Circuit found that Manzari presented evidence the Daily Mail acted with “reckless disregard” for the truth by removing contextual information from the picture that appeared in the stock photograph database and by failing to publish a disclaimer.
     The Daily Mail claims it did not intend to make such an implication, but if this were a sufficient defense on its own, McKeown wrote, then all defamation cases would fail.
     “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,” she wrote.
     Manzari is represented by Steven Weinberg of Wein Law Group LLP out of Los Angeles.
     Associated Newspapers is represented by Katherine Bolger from Levine Sullivan Koch & Schulz LLP in New York and by Louis Petrich from Leopold, Petrich & Smith PC in Los Angeles.
     Petrich declined to comment on the ruling when contacted by phone. Bolger did not respond to a request for comment Monday.
     Weinberg said in a statement that the Ninth Circuit ruling is “great news for Danni Ashe.”
     “While this is a great day for Ms. Ashe, we believe the decision is important beyond her claim because the decision will likely be cited as an important touchstone for how the press will be judged in the Internet age where many consumers now get their news exclusively via the net,” he said via email. “In this vein, the decision can be read as legal authority for the proposition that online headlines will likely be subjected to heightened judicial scrutiny because of the manner in which news disseminates across the web.”

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