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Sex, Lies and Defamation

By Steven M. Richman / Jul 27, 2016

On Monday, July 25, 2016, the Ninth Circuit emphasized the continuing viability of defamation claims in cyberspace, notwithstanding a culture saturated in images and "anything goes," by permitting a defamation claim by an on-line porn star to proceed. Manzari v. Associated Newspapers Ltd., No. 14-55329 (9th Cir. July 25, 2016).

Plaintiff, Leah Manzari, professionally known as Danni Ashe, is known, as the Court put it, "for her groundbreaking work in monetizing online pornography." The Daily Mail Online, part of defendant's media group, published a photograph of her "to convey the defamatory impression that she had tested positive for HIV." The case went to the appellate court on interlocutory appeal under the California anti-SLAPP statute.   

The claimed defamation resulted from an article headlined "Porn Industry Shuts Down with Immediate Effect After 'Female Performer' Tests Positive for HIV," and featured a photograph of plaintiff "lying suggestively across a bed," with "In Bed with Danni" in neon lights behind her, and the caption expressly stating "Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive." Notwithstanding that defendant took down the photograph upon demand from plaintiff's lawyer, the article had spread in minutes across the Internet.

Plaintiff sued for false light and libel under California law. It was undisputed she was not HIV positive. The claim for defamation was based on the juxtaposition of the article and her photograph. The defense was the article did not so imply, it had used a stock photo, and that as a public figure, plaintiff had to prove actual malice, which defendant claimed was absent.

The Court found that defendant made its prima facie case on its anti-SLAPP claim that the article was of public interest. The Court then held that although defendant did not affirmatively state that plaintiff was the performer with HIV, "the implication and the conclusion were neither subtle nor difficult to divine." Looking to the totality of the circumstances, a reasonable reader could infer that the article referred to plaintiff. Of interest in the analysis was the reference to the speed and quantity of dissemination across the Internet as evidence that sustained the implication that the article was about plaintiff. The Court also rejected that a supposedly passing reference was sufficient to overcome the plain implications. Finally, the Court found that the "reckless disregard of the truth" prong of the actual malice requirement was met to raise a factual question and "minimal merit" standard. There was evidence of removal of "key contextual information" from the photograph and replacement of it on the stock photo database, and an absence of any disclaimer.

Manzsari is in line with a decade-old First Circuit decision, Stanton v. Metro Corp., 438 F. 3d 119 (1st Cir. 2006), where plaintiff teenager was permitted to proceed on her defamation claim where her photograph was juxtaposed with an article in Boston Magazine headlined "Fast Times at Sliver Lake High: Teen Sex in the Suburbs." In that case, the disclaimer was not enough to defeat the claim from proceeding.

The case is important for its reassertion of basic principles, particularly in a social and political culture where so much is "fact checked" and so little accountability results from so much that is misstated.

If you have any questions regarding this e-alert, please contact Steven Richman at (609) 785-2911 | srichman@clarkhill.com or another member of Clark Hill's Litigation Practice Group.