LOS ANGELES — Danni Ashe's $3 million defamation suit against the Daily Mail of London moved forward today as a federal judge denied a pair of motions that would have cut down claims that her reputation was damaged after the former adult star's pic appeared in an article that informed readers that a performer tested positive for HIV.
U.S. District Judge George Wu said that he wouldn't dismiss Ashe's claims based on anti-SLAPP and failure-to-state-a-claim motions in a pretrial ruling over an article posted in August at the height of the HIV 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."
The Daily Mail later removed Ashe' s picture but did not respond to her demand to publish a retraction, the suit says.
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.
Ashe "has never tested positive for the HIV virus, nor has she ever had the HIV virus, nor has she ever been a performer in the hardcore pornographic film industry," the suit says.
In its defense, the Daily Mail says 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 knew who Ashe was and thus could not have intended to convey that she was HIV positive.
According to declarations to the court, the Daily Mail staff selected Ashe’s photo from a Corbis image database describing the porn star as posing in “one of her studios in Los Angeles in 2000."
"Indeed, despite reports that the actress [(Cameron Bay)] had not yet been identified, no one at the [Daily] Mail Online bothered to investigate [Ashe's] identity, period," Wu said in a footnote in his pretrial ruling. "[Ashe] may prevail if defendant had obvious reasons to doubt the veracity of its reporting, but engaged in purposeful avoidance of the truth."
The Daily Mail had asked the court to grant an anti-SLAPP motion, whereas they would have had to make a prima facie showing that Ashe's suit arises from an act in furtherance of the defendant's constitutional right to free speech. The media organization also said that Ashe can't prevail on defamation or false light causes of action.
But Wu today rejected the Daily Mail's pair of motions and scheduled a Feb. 13 status conference between both sides.
Ashe's attorney, Steven Weinberg, told XBIZ he's expecting discovery to commence with depositions of witnesses from the Daily Mail as the next step in the case.
"The law in this area is complex and heavily weighted in favor of media defendants like the Daily Mail, particularly where it is argued the injured party has some fame or notoriety," Weinberg says. "We are satisfied the court gave the Daily Mail’s multiple legal arguments due consideration and obviously pleased with the ruling in favor of Ms. Ashe at this initial stage of the case."
Ashe founded Danni' s Hard Drive in 1995 and later became known as the "most downloaded woman on the Internet." Her business, which made $6.5 million in profit in 2001, maintained 50 full-time employees, a 16,000-square-foot studio in Los Angeles and an archive containing hundreds of thousands of hours of softcore videos.
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.
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