Mar 2, 2016 2:56 PM PST    Text size: 

LOS ANGELES — A federal appeals court recently heard oral arguments in Danni Ashe’s long-running $3 million defamation case against the Daily Mail of London for publishing her photo within an article about an HIV-positive adult actress.

Ashe’s civil suit against the Daily Mail was put on hold after the publishing company appealed a district judge’s decision allowing the case to move forward.

The recent 39-minute hearing at the 9th U.S. Circuit Court of Appeals’ courthouse in Pasadena, Calif., offered some indication that the three-judge panel hearing the case might side with Ashe over the two appellate issues at hand, paving the way for a jury trial.

A video of the oral arguments can be seen here.

Ashe’s civil case against the Daily Mail stemmed from an online article that surfaced in 2013 informing readers that a performer tested positive for HIV at the height of an STI crisis in Porn Valley.

The Daily Mail article at the center of the case disclosed that XBIZ reported that a performer — later identified as Cameron Bay — had testified HIV positive.

The Daily Mail news piece includes a stock image of Ashe 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 claimed 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. She later filed the libel suit.

The Daily Mail argues 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.

On appeal, the Daily Mail's case boiled down to two main points — that the article was not susceptible of a defamatory meaning and that the declarations from Daily Mail staff swearing they had no intention of defaming Ashe completely immunizes the publication based on a broad interpretation of two 9 th Circuit opinions, Newton and Dodds, cited in the briefing.

Attorney Steven Weinberg of the Wein Law Group told XBIZ today that “the 9th Circuit panel “quickly rejected the Daily Mail's first argument and will likely rule — consistent with [the lower court] — that the published article is easily susceptible of a defamatory meaning about Ashe and let the matter proceed to jury trial.”

“The second issue is where the case will be decided and it is my hopeful expectation the panel will rule that declarations of innocence by reporters do not comprise ‘get out of jail free’ cards for the tabloid press and that Newton and Dodds do not add an additional proof requirement of subjective reporter malice to the 'reckless disregard' standard in New York Times v. Sullivan,”  he said.

Weinberg noted he was “cautiously optimistic” the 9th Circuit will affirm the lower court’s decision and rule that Ashe's lawsuit “is not an action ‘masquerading’ as a legitimate claim for the purpose of chilling free speech but rather, a viable and tenable action against the Daily Mail for hurtful and reckless folly that damaged her reputation.”  

“That would be a big win for Ms. Ashe," Weinberg said. "A further win against the tabloid press (in general), would be a decision clarifying (and limiting) the application of Newton and Dodds and a ruling that those decisions are limited to the particular facts and circumstances salient in those cases.”

Attorney Katherine Bolger, who argued the appeal for the Daily Mail, did not respond to XBIZ for comment on the appeal.

Ashe founded Danni' s Hard Drive in 1995 and later became known as the "most downloaded woman on the Internet." She appeared 30 movies, 23 TV appearances and made regular appearances on her website

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.

Pictured: Screen shot in court documents depicting Danni Ashe in the Daily Mail’s 2013 HIV story