Tuesday, July 26, 2016
Panel Allows Libel Suit by Actress Against British Tabloid
By KENNETH OFGANG, Staff Writer
A former adult film star can sue the British tabloid that ran her photo in conjunction with a story about an unnamed actress who had acquired HIV, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel agreed with U.S. District Judge George H. Wu of the Central District of California that Leah Manzari, better known as Danni Ashe, had a sufficient likelihood of prevailing in her suit against the Daily Mail Online to survive an anti-SLAPP motion.
“A picture is worth a thousand words,” Judge M. Margaret McKeown wrote for the panel. “A photograph, especially when coupled with text, can convey a powerful message: in this case, a potentially defamatory one.”
Manzari, the judge noted, was “a pioneer in the online entertainment industry” whose website danni.com generated millions of dollars before she sold it in 2004.
In 2013, the Daily Mail Online—the web version of the prominent British tabloid—ran an article headlined “Porn industry shuts down with immediate effect after ‘female performer’ tests positive for HIV.” The performer was not named and was said not to have contracted the virus while performing, but an old photograph of Manzari, acting a scene while on top of a bed, with a neon sign behind her reading “IN BED WITH Danni”—with Danni written in script—accompanied the story.
The photo caption read: “Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive.”
The photo was removed after Manzari’s attorney sent a cease-and-desist letter, but Manzari alleged in her complaint that the article “quickly spread across the globe via the Internet.”
She sued for defamation and false light invasion of privacy. The Daily Mail did not dispute her assertion that she had never tested positive for the virus, but claimed it never asserted that she did, and that its use of a stock photo to illustrate an article did not defame anyone.
Wu denied the anti-SLAPP motion, concluding that, even if Manzari was found to be a public figure who could not prevail absent actual malice, “a jury could reasonably conclude that those who created the Article intended to convey the impression—known by them to be false—that Plaintiff tested positive for HIV.”
McKeown noted that under Code of Civil Procedure §425.16, as interpreted in Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, a complaint will survive a motion to strike if “the plaintiff has stated and substantiated a legally sufficient claim.”
The judge agreed with the defendant that Manzari, self-described as “the most downloaded woman on the Internet,” was “undoubtedly a public figure.” But she met her burden under Mann, McKeown said, because she may be able to convince a jury by clear and convincing evidence that the publication of her photo carried a defamatory implication and that the defendant acted with actual malice.
Manzari may be able to convince the jury that the article implied she was the woman who contracted HIV, the judge said, and that a reader would not necessarily have concluded otherwise from the text. “A passing reference buried in the article can hardly cure the obvious message conveyed by the headline, photo and caption,” she wrote.
With respect to the constitutional test for actual malice, McKeown said a jury might find that the Daily Mail acted in “reckless disregard” of the truth by juxtaposing the plaintiff’s photograph “with the incendiary headline and caption.”
She noted that the database maintained by Corbis Images, from which the stock photo was obtained, identifies the subject of the photo as “Danni Ashe, founder of Danni.com,” yet the Daily Mail Online offered no “explanation or disclaimer…which would have informed readers that she was not the subject of the article.”
The defendant’s employees denials, the judge said, cannot by themselves defeat the plaintiff’s claims of actual malice.
“If, for instance, a newspaper ran the ‘High Profile Figure Accused of Murder’ alongside a photograph of the Mayor of New York, 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 behind her. 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.”
New York attorney Katherine M. Bolger argued in the Ninth Circuit for the defendant; her co-counsel was Louis P. Petrich of Leopold, Petrich & Smith PC in Los Angeles. Steven L. Weinberg of Wein Law Group, LLP in Los Angeles argued for the plaintiff.
The case is Manzari v. Associated Newspapers Ltd., 14-55329.
Copyright 2016, Metropolitan News Company