LOS ANGELES — Danni Ashe’s three-and-a-half-year-old defamation lawsuit against the Daily Mail of London is nearing an end.
On Friday, in a post-mediation status conference, both parties of the suit said a settlement had been reached in the case and that details of it are being finalized.
In 2013, the pioneering former web model in filed suit against the Daily Mail for publishing her photo within the context of an article about an adult performer who tested positive for HIV.
The 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."
The Daily Mail later removed Ashe' s picture but did not respond to her demand to publish a retraction, prompting damage claims of $3 million.
The case was slated to go to trial on April 28 in U.S. District Judge George Wu’s courtroom in Los Angeles, but with the settlement deal in place that date will be vacated.
The court has set a Jan. 26 deadline for both parties to sign off on the final settlement and file a stipulation to dismiss proposed order.
The proposed settlement in the case isn’t surprising given that the 9th U.S. Circuit Court of Appeals in July affirmed a lower court's order denying the Daily Mail’s motion to drop Ashe’s suit.
The appeals panel disposed the media company’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.
"A picture is worth a thousand words," the 9th Circuit said in its July opinion. "A photograph, especially when coupled with text, can convey a powerful message. In this case, a potentially defamatory one."
Ashe in her suit claimed Daily Mail employees acted with actual malice when they published an article implying that she was an HIV-positive sex worker. 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 adult biz, claimed that the London online publisher 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 argued that Ashe was 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 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.
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.
Upon comment, Ashe's attorney, Steven Weinberg, told XBIZ that he couldn't divulge terms of the settlement.
"Ashe's dispute with the Daily Mail and its web portal, MailOnline, was settled amicably ... and will be dismissed shortly," he said.
Katherine Bolger, an attorney who represents the Daily Mail, did not immediately respond to XBIZ for comment on the settlement.
Pictured: Screen cap of Daily Mail story with Danni Ashe
