LOS ANGELES — The Daily Mail of London has again asked a federal judge to dismiss Danni Ashe's $3 million defamation suit against the publishing company, noting that Ashe insisted in her complaint that the article at issue implicitly accuses her of performing in “hardcore” pornography and being “unchaste.”
Ashe's suit against the publisher moved forward last month as a federal judge denied a pair of motions that would have cut down claims that her reputation was damaged.
The graveman of the case focuses on an online pic that surfaced online last year informing readers that a performer tested positive for HIV at the height of the STI crisis in Porn Valley.
The Daily Mail article in question disclosed that XBIZ reported that a performer — later identified as Cameron Bay — had testified HIV positive.
Within the Daily Mail post, a stock image of Ashe is depicted of her posing on a bed in lingerie in a provocative manner, accompanied with the caption, "Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive."
Ashe claims that the Daily Mail never sought permission to use her image and didn't include any disclaimer that she was not the HIV-positive performer in question.
The Daily Mail later removed Ashe' s picture but purportedly did not respond to demands to publish a retraction, later prompting the libel suit.
In its defense, the Daily Mail said that Ashe is so well known that she is an all-purpose public figure for the purposes of defamation and that neither an editor or production staff member who pulled the pic from a database knew who Ashe was and thus could not have intended to convey that she was HIV positive.
Last week, Daily Mail counsel asked U.S. District Judge George Wu to pull the plug on Ashe's claims, enter judgment in its favor and award the publishing company attorneys fees.
"No reasonable reader could conclude that the article implies [Ashe] is a hardcore adult film actress," Daily Mail attorneys wrote in a supplemental memorandum in support of a dismissal. "Moreover, even if a reader could conclude that it does, such an implication is substantially true — as is the alleged implication that plaintiff is 'unchaste,' " or relating to or engaging in sexual activity, especially of an illicit or extramarital nature.
Daily Mail attorneys asked the court to take judicial notice of Ashe's pornographic career, including 30 movies, 23 TV appearances and regular appearances on her website that portray her in bondage fetish and masturbation scenes in various settings, including the kitchen, on a picnic, in the shower and in her bath tub.
"Her movies include graphic sex scenes between women with full frontal nudity, masturbation, cunnilingus and bondage," Daily Mail attorneys said. "In the video 'Danni Ashe’s Office Christmas Sex Party,' for example, Ashe and three other women have several sexual encounters that culminate with all four women masturbating and performing cunnilingus on each other simultaneously.
"It is clear, therefore, that [Ashe] has engaged in creating videos 'containing explicit descriptions of sex acts or scenes of actual sex acts,' which is precisely how Merriam-Webster defines hardcore."
Daily Mail attorneys continued with the argument discounting Ashe's assertion that she is not unchaste.
"[Ashe] appears to be arguing that having sex with men is unchaste, but having sex with women is not," Daily Mail attorneys said. "[Ashe]’s argument is based on an overly narrow view of the definition of chastity. As one California appellate court bluntly put it, 'to hold that chastity applies only to [heterosexual] fornication borders on the ridiculous.' ”
But Ashe's attorney Steven Weinberg of Los Angeles-based Wein Law Group said it is well known that Ashe's career was in softcore entertainment only.
"It is our position the Daily Mail article was about hardcore content because it: (1) extensively discussed the condom legislation and related debate; (2) included an image of a partially clothed couple on a couch about to have sex in front of a camera; and, (3) contained a report on previous industry shutdowns, including the Mr. Marcus incident [involving a male porn star]," Weinberg told XBIZ. "We believe a reasonable reader would make a connection and assume that Ms. Ashe performed in hardcore films.
"It is clear the Daily Mail will say or do anything to try to get the case dismissed before the merits can be heard and prevent Ms. Ashe from having her day in court," he said. "The Daily Mail has already tried numerous such ploys including arguing that since small print of the article stated the actress testing positive for HIV was 'unidentified,' no reasonable reader would believe the pictured model (Danni Ashe) was the same actress. Judge Wu rejected this argument.
"The Daily Mail also argued that since small print of the article stated the actress testing positive was 'new to the industry,' no reasonable reader would assume it was Danni Ashe, because, according to the Daily Mail, the whole world would recognize Danni as a famous porn star and not new.
"Curiously, the Daily Mail's own reporters submitted declarations under oath swearing that neither knew who Danni Ashe was, so Judge Wu denied this argument too. The Daily Mail's latest arguments are no different and will be rejected as misguided and without merit."
Ashe founded Danni' s Hard Drive in 1995 and later became known as the "most downloaded woman on the Internet." Ashe's business made $6.5 million in profit in 2001 and maintained 50 full-time employees at the time.
Penthouse Media Group Inc. purchased her companies, Danni Ashe Inc. and Video Bliss Inc., for $3 million in 2006. The acquisition included Danni. com, DannisHotBox.com and DannisHardDrive.com — all known for busty models, live webcasts and girl-girl videos.