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Manzari v. Associated Newspapers Ltd.

United States Court of Appeals, Ninth Circuit

July 25, 2016

Leah Manzari, PKA Danni Ashe, Plaintiff-Appellee,
v.
Associated Newspapers Ltd., Defendant-Appellant.

          Argued and Submitted February 12, 2016 Pasadena, California

         Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding D.C. No. 2:13-cv-06830-GW-PJW

          Katherine M. Bolger (argued), Levine Sullivan Koch & Schulz, LLP, New York, New York; Louis P. Petrich, Leopold, Petrich & Smith PC, Los Angeles, California; for Defendant-Appellant.

          Steven L. Weinberg (argued), Wein Law Group, LLP, Los Angeles, California, for Plaintiff-Appellee.

          Before: Andrew J. Kleinfeld, M. Margaret McKeown, and Sandra S. Ikuta, Circuit Judges.

          OPINION

         SUMMARY [*]

         Defamation /California's Anti-Strategic Lawsuit Against Public Participation Statute

         The panel affirmed the district court's order denying the Associated Newspapers Ltd.'s motion to strike a complaint pursuant to California's anti-Strategic Lawsuit Against Public Participation statute, in an action alleging defamation by Leah Manzari, a pioneer in the online adult entertainment industry and famous under her professional name, Danni Ashe.

         Manzari alleged that Associated News Ltd., in its online tabloid newspaper, the Daily Mail Online, used a photograph of her to convey the defamatory impression that she had tested positive for HIV. The panel agreed with the district court that, at this stage in the litigation, Manzari had presented sufficient evidence to move forward with her claim that Daily Mail Online employees acted with actual malice when they published an article implying that Manzari was an HIV-positive sex worker.

          OPINION

          MCKEOWN, Circuit Judge:

         A picture is worth a thousand words. A photograph, especially when coupled with text, can convey a powerful message: in this case, a potentially defamatory one. Leah Manzari, 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.

         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. 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. This case comes to us as an interlocutory appeal under California's anti-SLAPP statute. Cal. Civ. Proc. Code § 425.15. We agree with the district court that, at this stage in the litigation, Manzari has presented sufficient evidence to move forward with her claim that the Daily Mail Online employees acted with actual malice when they published the article implying that Manzari was an HIV-positive sex worker.

         Background

         As we explain below, we state the facts, from the pleadings and evidence presented, taken favorably to the plaintiff. Manzari is a pioneer in the online adult entertainment industry. Her website www.Danni.com, which she designed and launched in 1995, began generating multi-million dollar revenues in the early 2000s. During this time, "Danni Ashe" was one of the most well-known and popular soft-core porn actresses in the world, as well as a highly successful entrepreneur, with one of the most visited websites on the Web. She retired from the adult entertainment industry in 2004 and sold www.Danni.com, but the website remains active under that name.

         Associated News Ltd. publishes the Daily Mail, a popular United Kingdom-based tabloid newspaper, which also has an online version known as the Daily Mail Online (collectively the "Daily Mail"). In 2013, the Daily Mail Online ran an article covering the shutdown of the Los Angeles-area porn industry caused by a female performer testing positive for HIV. The headline read: "PORN INDUSTRY SHUTS DOWN WITH IMMEDIATE EFFECT AFTER 'FEMALE PERFORMER' TESTS POSITIVE FOR HIV." After a few lines of text, the article contained a picture of Manzari lying suggestively across a bed with "In Bed With Danni" written in neon lights behind her. Under her photograph was the caption: "Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive." The article stated that the actress was "new to the industry" and that "the performer was not immediately identified." Later in the article were two other photographs, but not of Manzari. One photograph appears to show a naked woman, whose face is not visible, leaning against a stripper pole. The other picture shows an unidentified couple being photographed while lying on a couch.

         The beginning of the article appeared as follows; we have redacted Manzari's face:

         (Image Omitted)

         Immediately after the story was published, Manzari's attorney sent the Daily Mail Online a cease and desist letter insisting that it remove Manzari's photograph from the article. The Daily Mail complied. According to Manzari, 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." Manzari provided examples of Google searches and other search results revealing thumbnails that show only the headline coupled with her photograph, without any explanatory text.

         Manzari brought a libel and false light suit against the Daily Mail under California law, which she filed in federal court under diversity jurisdiction. 28 U.S.C. § 1332(a)(2). The complaint sought three million dollars in damages to Manzari's business and reputation. Manzari contends that the juxtaposition of her image with the explosive headline and caption conveyed the impression that she is the performer who tested positive for HIV. Manzari's claim that she does not and has never had HIV is not contested. Instead, the Daily Mail responds that the article made no such implication ...


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