Daily Mail Must Face Defamation Suit After Using Photo of Porn Star in HIV Story

Don't read this story because it involves a porn star. Read it because it presents a picture of how media companies can get into legal trouble by acting willfully blind.

"A picture is worth a thousand words," notes 9th Circuit judge M. Margaret McKeown at the start of her opinion released on Monday. "A photograph, especially when coupled with text, can convey a powerful message: in this case, a potentially defamatory one."

Leah Manzari, popularly known as Danni Ashe and once called "the most downloaded woman on the Internet," is the woman who brought the case.

In 2013, the Daily Mail released an article headlined, "Porn industry shuts down with immediate effect after 'female performer' tests positive for HIV." The publication chose to use as its main image a photograph of Manzari despite the fact that she wasn't the female performer being referenced. According to the article's author, the photo desk was asked to supply "some pictures representative of the pornographic film industry that... contained no nudity." The publication's assistant photo editor complied with a photo of Manzari because it was a "good, non-obscene photograph."

Those who glanced at the story and read the caption, however, might have not realized that Manzari hadn't tested positive for HIV. Since words don't always do justice, the 9th Circuit provides its own photograph of the article in question:

After Manzari filed a defamation lawsuit, the publication's owner Associated Newspapers Ltd. looked to have the complaint stricken under California's anti-SLAPP statute, which provides recourse for those whose First Amendment rights are being bullied. The lower court judge denied the motion.

Thus, the appeal takes up the question of whether Manzari has a probability of prevailing in her lawsuit. If not, Manzari loses.  If so, Manzari moves forward. Spoiler: She'll be marching ahead.

The 9th circuit agrees that Manzari is a public figure. Her "celebrity in the porn world might mean that she is less of a household name than stars in other sectors of the entertainment industry, but that does not make her fame any less pervasive," writes McKeown, adding, "In an independent study conducted in 2000, Manzari was found to have the most popular site run by and featuring women on the Web, far surpassing the amount of Internet traffic for websites of such ubiquitous celebrities as Martha Stewart and Oprah Winfrey."

Manzari has two big hurdles in her defamation lawsuit.

The first is whether the photograph in its context leads a reasonable reader to the implication that she had tested positive for HIV. A couple notes: The article in question never affirmatively stated Manzari tested positive. Moreover, the article noted that the performer whose diagnosis had triggered a fuss was new to the industry. Manzari was hardly a newcomer.

Harking back to the clichéd opening, though, the 9th Circuit doesn't appear to believe this is a close one. By using a bold headline and juxtaposing it with Manzari's photograph, the Daily Mail could lead a reader to an unfortunate inference, concludes McKeown. Perhaps worrying to other media outlets choosing attention-grabbing headlines, the text within an article might not absolve headlines and stock imagery.

As the 9th Circuit judge puts it," The Daily Mail suggests this case is different from the classic defamation by implication case because it did not make any statement by including a stock photograph selected as a 'good, non- obscene photograph to illustrate the article.' This disingenuous approach overlooks the fact that a photograph itself can convey both an implicit and an explicit message and that the headline, caption and photograph taken together are also a statement."

Because Manzari is deemed to be a public figure, her second big hurdle is she must also show that the news publication acted with actual malice, which means either knowledge of falsity or reckless disregard for the truth.

"Defamation by implication against public figures is an area of law 'fraught with subtle complexities,'" writes McKeown. "We have not always charted a clear path when applying the actual malice test to implied defamatory content."

The 9th Circuit here rules there is enough to support the conclusion that the Daily Mail acted with reckless disregard. The appellate court cites evidence that the publication's employees removed contextual information from the "Danni Ashe" photograph in the image database, that the publication's employees echoed the headline in the photograph's caption, and that there was no explanation nor disclaimer given.

"It is no surprise that the Daily Mail employees deny that they understood or intended to make any implication about Manzari," states the opinion. "While a finding that the publisher’s testimony lacks credibility cannot on its own sustain a finding of subjective intent, the denial must be read in the context of other evidence. If all a publisher needed to do was to deny the allegation, all implied defamation suits would be dead on arrival. If, for instance, a newspaper ran the headline: 'High Profile Figure Accused of Murder' alongside a photograph of the Mayor of New York, or 'Industry Shocked that Grocery Sprayed Veggies with Pesticide' alongside an image of a nationally-known grocery chain, the publishers would be hard-pressed to plausibly claim that they had simply selected a 'stock' photograph. The same holds true for a story about the pornography industry, featuring a picture of a world-famous pornographic actress with her name written in neon lights behind her. This sort of willful blindness cannot immunize publishers where they act with reckless disregard for the truth or falsity of the implication they are making."