A picture is worth a million dollars

Imagine a magazine ran a story with the headline "Billionaire Files for Bankruptcy," and featured an accompanying photo of Bill Gates or Warren Buffett (neither of whom was the subject of the story who filed for bankruptcy) simply to provide an image to its readers of a billionaire. Alternatively, imagine a commercial for the local news announces, "California zoo accused of cruelty to animals ? story coming up at 11:00," with a live camera shot of the San Diego Zoo (which was not the zoo in question) because it's easily identifiable as a zoo in California. In each of these scenarios, could the public reasonably conclude that the billionaire in the photo is the one who is bankrupt or the zoo in the camera shot is the one accused of cruelty? Yes, according to the 9th U.S. Circuit Court of Appeals; these scenarios are likely examples of implied defamation, as recently announced in Manzari v. Associated Newspapers Ltd., 2016 DJDAR 75041 (9th Cir. July 25, 2016).

The court in Manzari held that Leah Manzari (a popular soft-core porn actress known by her professional name, Danni Ashe) could move forward on a claim of implied defamation based on Associated Newspapers' use of her photo in connection with its story about an unnamed porn actress who tested positive for HIV and the temporary shutdown of the Los Angeles porn industry. To illustrate the concept of implied defamation, the court provided the following examples: a newspaper running the headline "High Profile Figure Accused of Murder" next to a photo of the mayor of New York, or the headline "Industry Shocked that Grocery Sprayed Veggies with Pesticide" next to a photo of a nationally known chain of grocery stores. In either scenario, as the court concluded, the implication of the headline juxtaposed with the photo conveyed an implicit and explicit message that the subject in the photo was not only connected to the headline, but was a visual depiction of it. Hence, the court found that a reasonable reader could infer that Associated Newspapers' article was about Manzari.

Manzari was well-known in the adult entertainment world, with a highly popular website, www.Danni.com. In 2013, Associated Newspapers ran a story in its online tabloid newspaper, the Daily Mail Online, with the following headline: "Porn industry shuts down with immediate effect after 'female performer' tests positive for HIV." After a few lines of text, the story showed a photo of Manzari wearing lingerie on a bed, with the words "In Bed with Danni" written in lights behind her. The caption to the photo stated: "Moratorium: The porn industry in California was shocked on Wednesday by the announcement that a performer had tested HIV positive." This caption replaced the text that came with the photo from the Corbis Images database, which stated: "Soft porn actress Danni Ashe, founder of Danni.com, poses in front of a video camera connected to the Internet in one of her studios in Los Angeles in 2000." The article quickly spread throughout the world over the internet, and, even worse for Manzari, search results showed the headline of the story and Manzari's photo without any explanatory text. Manzari sued for $3 million, alleging that the use of her photo in the Daily Mail Online falsely implied that she was the porn actress who had contracted HIV.

The article's author claimed that he had simply asked the Daily Mail Online's photo desk to supply him with stock photos, and he chose the photo of Manzari as an illustration of the porn industry. The article reported that the HIV-infected actress was new to the industry and was not immediately identified.

The court evaluated whether Manzari had a reasonable probability of prevailing on the merits of her claim in order to defeat Associated Newspapers' special motion to strike her complaint under California's anti-SLAPP statute. In order to defeat the anti-SLAPP motion, Manzari had to show that the article contained implied defamation and that Associated Newspapers acted with "actual malice," that is, it either knew that the implication about her was false or acted with reckless disregard for the truth.

Defamation by implication is well established in California. For example, following O.J. Simpson's murder acquittal, the National Examiner ran an article with the headline "COPS THINK KATO DID IT! ... he fears they want him for perjury, say pals." Seventeen pages later, the actual article was about Kato Kaelin's purported fear of being convicted of perjury. However, in Kaelin v. Globe Communications Corporation, 162 F.3d 1036 (9th Cir. 1998), the 9th Circuit agreed with Kaelin that the front-page headline could falsely insinuate that Kaelin was suspected of murder and that this implied defamation was not necessarily cured by the subheading or the article about perjury. The court followed similar reasoning in Manzari ? headlines matter, and "[a] passing reference buried in the article can hardly cure the obvious message conveyed by the headline, photo and caption."

Not only did the court find that Manzari presented sufficient evidence of implied defamation, it found sufficient evidence that Associated Newspapers had acted with reckless disregard for the truth when it used the photo of Manzari. Specifically, the court noted that Daily Mail Online employees had replaced the photo's original caption with the caption stating that the porn industry was shocked by the discovery of an HIV-positive actress. The court also explained that the Daily Mail Online did not include any disclaimer next to the photo to inform readers that "Danni Ashe" was not the HIV-infected actress. Associated Newspapers' actions were more than just careless ? according to the court, the publisher engaged in willful blindness when it used the photo of Manzari alongside a negative headline.

It is easy to see why, after the Manzari decision, the media should be concerned about the risk of implied defamation that could result from the use of stock photos with negative headlines, and this case provides an important cautionary tale. Editors should carefully consider when and the circumstances under which to use stock photos in connection with negative headlines. As a general matter, a stock photo of an unrecognizable landscape is less likely to lead to liability than a stock photo of an individual. And it might be a virtual certainty that use of a photo of a celebrity in connection with a story that is not about that person will probably lead to swift claims for defamation. While ordinary defamation is more well-known and perhaps can more easily be avoided, Manzari is a good reminder of the trouble that a publication can get into for implied defamation.

William J. Briggs II is a partner and Melissa McLaughlin is an associate with Venable LLP.