Jul 25, 2016 11:11 AM PDT    Text size: 

PASADENA, Calif. — Danni Ashe’s multimillion-dollar defamation lawsuit against the Daily Mail of London for publishing her photo within an article about an HIV-positive adult actress can move forward, according to a federal appeals court.

This morning, the 9th U.S. Circuit Court of Appeals affirmed a lower court’s order denying the publisher’s motion to drop the suit under California’s anti-SLAPP (strategic lawsuit against public participation statute).

California’s anti-SLAPP statute provides a mechanism to weed out lawsuits that masquerade as ordinary lawsuits but are brought to deter those from exercising their political or legal rights or to punish them for doing so.

The appeals court today agreed with the lower court that, at this stage in the litigation, Ashe, a “pioneer in the online adult entertainment industry and famous under her professional name,” had presented sufficient evidence to deny the Daily Mail’s motion to strike her complaint and move forward with her $3 million claim.

“A picture is worth a thousand words,” the 9th Circuit said today in its opinion. “A photograph, especially when coupled with text, can convey a powerful message:  in this case, a potentially defamatory one.” 

Ashe, in her suit, claims Daily Mail employees acted with actual malice when they published an article implying that she was an HIV-positive sex worker.  

The suit arose after 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 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 article included 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, who no longer works in the online adult biz, 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 London online publisher 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 argued 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.

The 9th Circuit today said they reviewed the case de novo, or from the beginning, and found that Ashe’s claim had proven “minimal merit” to avoid outright dismissal of her complaint

“The threshold question that frames our defamation analysis is a legal one,” the 9th Circuit said in its opinion. “Whether an individual is a public figure is a question of law that must be assessed through a totality of the circumstances.”

Defamation claims, the 9th Circuit said, are significantly cabined by the First Amendment, especially when the plaintiff is a public figure, like Ashe.

“In order to prevail, [Ashe] must show that the Daily Mail acted with actual malice, the 9^th Circuit said. “Defamation by implication claims pose an additional hurdle: [Ashe] 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.”

Attorney Steven Weinberg of the Wein Law Group, who represents Ashe, told XBIZ that the 9th Circuit's decision is "great news for Ashe, not only because she solidly won against the Daily Mail, but also because the decision sets the tone for the rest of the case.”

“The 9th Circuit held that even at this early stage, Ms. Ashe established that the Daily Mail acted with reckless disregard in publishing her photograph in conjunction with the Daily Mail article,” Weinberg said.    

“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 online publication did not affirmatively state she was the performer with HIV.   

“While this is a great day for Ms. Ashe, we believe the decision in this case is important beyond her claim against the Daily Mail because it will also be cited by other courts in the future as an important touchstone for how the press' behavior will be judged in the internet age where most consumers now get their news via the net. 

“In this vein, the decision is now legal authority that headlines of articles will now be under more scrutiny because of the manner in which news disseminates across the web. All in all, we are delighted by the 9th Circuit's decision and look forward to having Ms. Ashe's case heard by a federal jury early next year.”

Attorney Katherine Bolger, who represents 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."

Ashe appeared 30 movies, 23 TV appearances and made regular appearances on her website. Her business made $6.5 million in profit in 2001 and maintained 50 full-time employees at the time.

In 2006, Penthouse purchased her companies, Danni Ashe Inc. and Video Bliss Inc., for $3 million. The acquisition included Danni.com, DannisHotBox.com and DannisHardDrive.com — all known for busty models, live webcasts and girl/girl videos.

Pictured: Danni Ashe