Plaintiff Leah Manzari, an alleged pioneer in the online adult entertainment industry and purportedly famous under her professional name, Danni Ashe, filed suit for libel and false light in California district court, alleging that an article published by defendant Associated News Ltd. in its online newspaper, the Daily Mail Online, implied that Manzari was HIV positive. Last week, in an opinion selected for publication, the Ninth Circuit affirmed the district court’s order denying Associated News Ltd.’s motion to strike the complaint pursuant to California’s anti-SLAPP statute, California Code of Civil Procedure § 425.16(e), thereby permitting Manzari’s claims to proceed. The case is Manzari, PKA Danni Ashe v. Associated Newspapers Ltd., No. 14-55329.
Manzari’s claims are based on an article featuring a stock photograph of Manzari next to a headline reading, “PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER ‘FEMALE PERFORMER’ TESTS POSITIVE FOR HIV.” Underneath the photograph is a caption stating, “Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive.” Neither the headline nor the article caption clarified that Manzari was not the “female performer” who tested positive for HIV, and there was no dispute that Manzari never had HIV.
In the district court, the defendants moved to strike Manzari’s complaint pursuant to California’s anti-SLAPP statute, California Code of Civil Procedure § 425.16(e). In ruling on an anti-SLAPP motion, the court engages in a two-step process. First, it decides whether the defendants have made a threshold showing that the challenged cause of action is one arising from a protected activity. If they succeed in meeting this threshold requirement, the burden then shifts to the plaintiff to demonstrate a reasonable probability of prevailing on its claims, by showing that the complaint is both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.
In deciding the first step, the Ninth Circuit agreed that publishing an article regarding the public health aspects and safety of a the California adult entertainment industry was a topic of public interest, sufficient to satisfy the Daily Mail’s initial burden that the libel and false light suit targeted speech protected by the anti-SLAPP statute.
In deciding the second step, Manzari was required to show that the article was reasonably understandable to imply the defamatory statement. Manzari was also required to show that the Daily Mail acted with actual malice, because the Court deemed Manzari a public figure, in light of her celebrity in the world of adult entertainment, “millions of Internet downloads, extensive publicity, and broad public exposure[.]”
The Ninth Circuit held that Manzari had presented sufficient evidence of the article’s defamatory implication, and that a reasonable reader could infer that the article is about Manzari, particularly given the size and placement of the photographs and text. Even though the Daily Mail did not affirmatively state that Manzari was the performer with HIV, the court recognized that “a photograph itself can convey both an implicit and an explicit message and . . . the headline, caption and photograph taken together are also a statement.” Moreover, the Daily Mail could not “cure the obvious message conveyed by the headline, photo and caption” by making a “passing reference buried in the article” that the performer in question had not yet been identified.
In proving actual malice, Manzari was required to present evidence that defendants acted with knowledge of falsity or reckless disregard for the truth. In light of the combination of the headline, the stock photograph of Manzari, and the caption, the Ninth Circuit found that Manzari met her burden. The Ninth Circuit analogized this case to a newspaper running the headline: “High Profile Figure Accused of Murder” alongside a stock photograph of a mayor of a major city, or “Industry Shocked that Grocery Sprayed Veggies with Pesticide” alongside a stock photograph of a national-recognized grocery store name. In such instances, “the publishers would be hard-pressed to plausibly claim that they had simply selected a ‘stock’ photograph.” According to the Ninth Circuit, any such argument “cannot immunize publishers” and constitutes reckless disregard for the truth or falsity of the implication they are making.