Danni Ashe Defamation Suit Against UK Daily Mail Can Go Forward

LOS ANGELES—In an opinion issued today, the Ninth Circuit U.S. Court of Appeals has ruled that adult model and web star Danni Ashe may proceed with her defamation suit against a British newspaper that published a photo implying that the actress was HIV-positive. Once lauded as "the most downloaded woman on the Internet," sexy model Ashe hasn't posted any new adult content of herself since 2004—but one particular image from her website has haunted her, thanks to an article published online by the Daily Mail Online (UK) on August 22, 2013, under the headline, "Porn industry shuts down with immediate effect after 'female performer' tests positive for HIV." The article reported an a moratorium that had been called by Free Speech Coalition after the news that one of the testing clinics had found an HIV-positive performer, who later turned out to be Cameron Bay—but since that name had not yet been revealed, the online tabloid printed photos of several "porn stars" (in quotes because Ashe never acted in hardcore movies) with its article, one of whom was assumed to be Danni Ashe, thanks to the neon sign in the background reading "In Bed with Danni," one of the shows available at that time on Danni.com. Of course, Ashe wasn't—and isn't—HIV-positive, so she sued the newspaper for defamation. The Daily Mail's attempted defense was that Ashe was a public figure, that the photo was used without malicious intent, and that the suit should therefore be dismissed under California's anti-SLAPP laws. A SLAPP—or "Strategic Lawsuit Against Public Participation"—is a lawsuit that is intended to prevent critics and activists from commenting on a particular topic by suing them and using the cost of defending such a suit as a deterrent to publishing information seen as harmful to the lawsuit's plaintiff(s)—which is how the Daily Mail characterized Ashe's suit in Los Angeles Superior Court when it was before Judge George H. Wu. However, Wu ruled that that the photo was in fact defamatory, in part because of the visible neon sign, and that the newspaper should have realized that readers would assume that the actress was Ashe, and would further assume that she was therefore HIV-positive. It is that ruling which was affirmed today by the Ninth Circuit. "A picture is worth a thousand words," begins the decision authored by Judge M. Margaret McKeown for a three-judge panel of the Ninth Circuit. "A photograph, especially when coupled with text, can convey a powerful message: in this case, a potentially defamatory one. [Redacted], famous under her professional name, Danni Ashe, for her groundbreaking work in monetizing online pornography, claims that the Daily Mail Online, an online news outlet, used a photograph of her to convey the defamatory impression that she had tested positive for HIV." Although the Daily Mail removed the offending photo from its site once Ashe complained, "by then the damage was done—the article had been syndicated and 'quickly spread across the globe via the Internet and within minutes, could be seen as far as East Africa and India,'" McKeown reported Ashe as stating, and that "Google searches and other search results reveal[ed] thumbnails that show only the headline coupled with her photograph, without any explanatory text." Originally, both the editor and writer of the Daily Mail article countered that, not knowing the identity of the allegedly HIV-positive porn star, just used generic "porn star" photos for the article, but according to the ninth Circuit ruling, "The district court denied the anti-SLAPP motion to strike, concluding that even if [Ashe] were a public figure, 'having considered the totality of the choices and admissions made by the Mail Online’s staff, ... 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.'" And as to whether Ashe was a "public figure," and therefore less able to sue for defamation, the Ninth Circuit concluded that, "[Ashe's] celebrity in the porn world might mean that she is less of a household name than stars in other sectors of the entertainment industry, but that does not make her fame any less pervasive. The Daily Mail presented extensive support for its position that [Ashe] is a public figure, including interviews with [Ashe] ... and news coverage related to her considerable success performing in and marketing online soft-core porn." "The favorable decision is also welcomed by Ms. Ashe because it completely disposes of the Daily Mail's repeated argument that no reasonable reader would have found the article defamatory because the Daily Mail did not affirmatively state she was the performer with HIV," noted the Wein Law Group's Steven L. Weinberg, Ashe's attorney. "According to the Court, 'The Daily Mail did not affirmatively state that [Ashe] was the performer with HIV, but the implication and the conclusion were neither subtle nor difficult to divine. 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 [Ashe] was the performer who had tested positive for HIV.' "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 a touchstone for how the press will be judged in the Internet age where many consumers now get their news exclusively via the net," Weinberg added. "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." Indeed; the court itself quoted from the 1991 decision in Weller v. American Broadcast Company that, "If the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or otherwise creates a defamatory implication, he may be held responsible for the defamatory implication, even though the particular facts are correct," and added its own thoughts that, "The clarity of the implication is all the more apparent given how news spreads across the Internet. As Daily Mail Online—a leader and professional in online publishing—would no doubt be aware, links to news articles frequently appear in online search engines or other compilations with only a headline and photograph connected to that story." And regarding the requirement that the news site engaged in "actual malice" in publishing the photograph, the court noted, "This case rests on the 'reckless disregard' prong of actual malice. Recognizing that California law requires only 'minimal merit' to withstand initial dismissal under the anti- SLAPP statute, we hold that [Ashe] 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 shut-down." "All in all, we are delighted by the Ninth Circuit's decision this morning and look forward to having Ms. Ashe's case heard by a Federal jury early next year," Weinberg stated. Also pleased was Danni.com's present owner, Penthouse publisher Kelly Holland. "We are pleased with the Ninth Circuit’s findings and comments on the case," Holland said. "This ruling demonstrates that the First Amendment can be both a sword and a shield. While it protects freedom of speech, it also is not an absolute guarantee for the press to violate other deep-rooted civil liberties. This case clearly illustrates that as Americans, we are all subject to the same fundamental rights, regardless of the type of work or industry at issue. Despite the varying degrees of media propaganda, adult industry icons are not generic, interchangeable props. They are entitled to the same protection under the law that people like Beyonce, Angelina Joli or other leaders of industry have. Danni Ashe is one of the most well-known internet stars in history, and our website Dannis.com has been and continues to be one of our most valuable assets." Interestingly, The Hollywood Reporter, in its story on the Ninth Circuit decision, itself posted a photo at the top of its page of a brunette who was not Ashe, and Holland had to call the site's editor to inform them of their mistake, which has since been rectified. Pictured: A screen capture of the Daily Mail Online article, and Danni Ashe.