Kink.com and owner, Peter Acworth, were financially damaged by AIDS Healthcare Foundation’s Michael Weinstein for “repeated defamatory statements,” according to a cease-and-desist letter sent last week by attorney Karen Tynan on behalf of Acworth.
Tynan has asked for Weinstein to cease alleged “tortious conduct” as well as damages for Acworth’s increased costs and expenses in running Kink.com.
Beginning in August 2013, you and your paid adult performers acting on your behalf, have made repeated defamatory statements outside of any legislative or judicial process or protections. Your intentional behavior has been nothing short of a campaign of deceitfulness to imply on-set transmissions of HIV which you know did not happen. Your statements made against Cybernet Entertainment LLC (dba Kink.com) and Peter Acworth are defamatory and must stop.
There are numerous examples of the intentional misrepresentations made by you and your performers. The press conference on Sept. 18, 2013, is particularly helpful in examining the litany of tortuous conduct these past months. Even your own archives evidence the defamation you have repeatedly perpetrated. “Michael Weinstein, head of the Los Angeles-based AIDS Healthcare Foundation and a backer of the condom law, said he suspects that Bay contracted the virus on a set.” Last month, he said, the actress tested negative for HIV, and this month, she tested positive. In one film that she worked on between the tests, it appears that condoms were not used, Weinstein said. “lt‘s a tragedy for her,” he said. “Obviously she was infected by someone.” Add the many other examples of press releases wherein you claim that these two adult film performers are infected on the set, implying that it happened on a Cybernet Entertainment set, and it’s easy to see a pattern of malicious and purposeful defamation that-.\has remained unchecked by the AHF board and officers.
Absent an immediate cessation of the fabrications and lies, we will file a lengthy complaint in state court seeking injunctive relief, as well as recovery of special damages and punitive damages. Because I do not believe that you will welcome or reasonably evaluate this demand, I’m including substantial analysis of your liability as well as AHF’s liability for many torts. it is my sincere desire that your counsel and board of directors evaluate this demand and act accordingly by directing you and the performers to cease this pattern of defamatory statements and libelous activities before AHF and its directors and of ficers are subject to civil litigation and liability.
We recognize and l’m sure you rely upon the fact that some of the statements made on behalf of AHF and made by your performers are nominally protected by California’s Anti-SLAPP statutes as they are made at the State Capitol to legislators. For arguments sake, excluding those statements made at the legislature, your press releases, press conferences, and public statements have created substantial liability based upon a variety of tort theories including libel, libel per se, slander, trade libel, and intentional and negligent interference with business relations. With the payments made to your performers as well as the expenses AHF has paid for them, they are clearly in your employ and acting as your direct agents. All of their statements are imputed to AHF for liability purposes. Our demand is based upon the following abridged legal analysis:
Defamation is an invasion of the interest in reputation. As you may know, the tort involves the intentional publication of a fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage. Defamation has two forms, libel and slander. You have committed both. California Civil Code §44. Defamatory publications that are made by writing, printing, picture, effigy, or other fixed representation to the eye, are considered libel. California Civil Code §45. Slander involves defamatory publications that are orally uttered, and also includes communications by radio or any mechanical or other means. California Civil Code §46. Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645; Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132.
As you likely know since you are may be considered a public figure, a public figure suing for defamation “must demonstrate ‘actual malice’ by clear and convincing evidence.” (Christian Research Institute v. Alnor (2007) 148 Ca|.App.4th 71, 84. Actual malice “requires a showing that the allegedly false statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ The reckless disregard standard requires a ‘high degree of awareness of probable falsity.“ Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1167.
Here, even if Peter Acworth is regarded as a public figure, the statements made by you and your cohorts will be shown to have been made with malice. You must be aware that no other performers have tested positive for HIV, making it impossible for these infections to have happened on set, yet you continue to state that performers contracted HIV on an adult film set, Cybernet’s film set.
Despite no public statements by either the Los Angeles Public Health Department or the San Francisco Public Health Department, you have continued to make these false statements. You chose to strategically ignore information that indicated infections happened off-set, and instead, you falsely claimed that the individuals contracted HIV on an adult film set in order to promote your own well documented agenda against the adult entertainment industry. These facts will be easily proved at trial. A Further, the statements you and your agents make are not privileged. You have no legal theory of privilege that would allow you to make any of the fabricated and deceptive statements. The damages suffered by Cybernet and Peter Acworth will be straightforwardly shown at trial.
Libel per se is distinguished from libel per quod in Civil Code section 45a Slaughter v. Friedman (1982) 32 Cal.3d 149, 153-154: “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face.
Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate resultthereof. Special damage is denied in Section 48a of this code.” The definition:”‘Special damages’ are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other.” ( Civ. Code, § 48a, subd. 4(1))-)
Making allegations and assertions that convince models and the public that there was an HIV transmission on set is libel per se. You will not have the defense of truth available to you. Truth is a complete defense against civil liability for defamation regardless of the bad faith or malicious purpose of the publisher of the material. Swaf field v. Universal Ecsco Corp. (1969) 271 Cal App 2d 147, 76. Here, there is no truth to the statements you are making regarding Cybernet Entertainment and Peter Acworth. There was no HIV transmission on a set or in the adult entertainment industry. All individuals who claim to have contracted HIV did so in their private life activities.
You and AHF will be answerable for trade libel. The Restatement Second of Torts, has described the tort of “trade libel” as “[t]he particular form of injurious falsehood that involves disparagement of quality . . . .” ( Rest.2d Torts, § 626, com. a, at p. 346.) lt is there de fined as “the publication of matter disparaging the quality of another‘s land, chattels or intangible things, that the publisher should recognize as likely to result in pecuniary loss to the other through the conduct of a third person in respect to the other’s interests in the property.” Rest.2d Torts, § 626, p. 345. California has adopted the Restatement formulation. Erlich v. Etner (1964) 224 CaI.App.2d 69, 73. Trade libel has also been de fined as encompassing all false statements concerning the quality of services or product of a business which are intended to cause that business financial harm and in fact do so.
In the view of one reviewing court, trade libel “is a confusing concept that has not been subjected to rigorous judicial analysis in California.” Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 548 Be that as it may, it is nonetheless a well recognized tort in this state. Hoffman Co. v. E. I. Du Pont de Nemours & Co. (1988) 202 Cal.App.3d 390, 397; Guess, Inc. v. Superior Court, supra, 176 Cal.App.3d at pp. 478-479; Nichols v. Great American Ins. Companies ( 1985) 169 Cal.App.3d 766, 773. To constitute trade libel, a statement must be false, but need not be malicious except in the sense that it was not privileged. Gudger v. Manton (1943) 21 Cal.2d 537, 543, disapproved on other grounds in Albertson v. Raboff (1956) 46 Cal. 2d 375, 381.
One of the important differences between trade libel on the one hand and defamation on the other, is said to be that ‘because of the economic interest involved, the disparagement of quality may in a proper case be enjoined, whereas personal defamation cannot. importantly, the tort of trade libel does not require a showing of malice in order to recover.
By engaging in this pattern of defamatory actions, you and your agents are answerable for the interference with the business relations of Cybernet Entertainment LLC. The first opinion that articulated the elements of the tort of intentional interference with prospective economic advantage was Bucka/00 v. Johnson (1975) 14 Cal.3d 815, 827. These elements are usually stated as follows: ” ‘(1) an economic relationship between the plaintiff and some third party, with the probability of future economic bene fit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521-522.
For the past nine months, you and your perfowners have regularly and repeatedly defamed Cybernet Entertainment and Peter Acworth in order to create model distrust of the company and financial hardship for the company. The defamatory statements have caused a distrust by the models, blogs have repeated your lies, and the reputation of Cybernet Entertainment, as Kink.com, has suffered greatly. Your acts have been deliberate, intentional, and strategic. All meant to create havoc and to distress Cybernet Entertainment financially. All of the financial damages are directly related to your concerted actions to spread falsehoods and inaccuracies about the company and its founder.
Your September 19, 2013 press conference is over forty minutes of fabrications, deceptions, and slander. Your press conferences and press releases are further regurgitation of the same defamatory claims and statements.
The officers and directors of AHF will likely be held personally liable for the defamatory statements made by you and your performers. Directors and officers of a corporation are not rendered personally liable for its torts merely because of their official positions, but may become liable if they directly ordered, authorizedor participated in the tortious conduct. United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal. 3d 586, 595. Personal liability, if otherwise justi fied,may rest upon a “conspiracy” among the officers and directors to injure third parties through the corporation. Golden v. Anderson (1967) 256 Cal. App. 2d714, 719-720; Gruenberg v. Aetna Ins. Co. (1973) 9 Cal. 3d 566, 576; Wise v. Southern Paci fic Co. (1963) 223 Cal. App. 2d 50, 72.
Here, we believe discovery would reveal your inner workings and show the conspiracy to defame our client. The of ficers and directors all work closely with you and are aware of your tactics and methods. The press releases containing defamatory statements are available on the AHF website. This campaign of defamation is highly publicized, and I imagine, the subject of many a conversation in the workplace. The of ficers of the company, as well as the board will not be able to deny knowledge of the pattern of defamatory statements made by you and your performers. Certainly AHF may have insurance to defend the board, but it is likely that AHF would be liable for the majority of the damages and costs.
Cybernet Entertainment and Peter Acworth have been financially damaged by your tortious conduct. Damages include increased costs and expenses associated with defending the company from these libelous statements, increased production costs, increased marketing costs, as well as other expenses. Because of your untruthful statements regarding the company, models were reluctant to work with Cybernet Entertainment because you and your performers had instilled an unreasonable and misleading fear of contracting HIV on a Kink.com set.
As a courtesy, we’ve enclosed the jury instructions for the above referenced torts. (Editor’s note: the jury instructions are not attached.) You may find it helpful to consider the elements of the torts and the ultimate decisions a judge or jury would need to make.