Defamation and #MeToo Part III: Kesha

A case that pre-dated the mainstream #MeToo headlines in 2017 was back in the headlines last month. Popular singer/songwriter Kesha, whose hit ballad Praying became one of the anthems of the #MeToo movement, has been involved in a series of legal battles against the man (music producer Dr. Luke) she alleged “sexually, physically, verbally, and emotionally abused” her. “The Complete History of Kesha’s Fight Against Dr. Luke” updated last month provides a comprehensive timeline of the litigation.

The most recent events involve Dr. Luke’s countersuit for defamation. A New York court ruled (“New Court Ruling”) that Kesha had, as a matter of law, defamed Dr. Luke on at least one occasion. The court also set the stage to make the rest of Dr. Luke’s case easier to prove at trial when it ruled that Dr. Luke is a private figure.

In defamation cases involving private individuals and private matters, the burdens are typically heavier for the alleged defamer. The person who allegedly made defamatory statements is often burdened with having to prove that their statements are true. In cases involving public figures or matters of public concern, the person who alleges he was defamed typically must show the claims against him are false. It’s an important distinction.

Consider the allegations Dr. Luke claims are defamatory. Part of Dr. Luke’s lawsuit concerns statements Kesha made alleging Dr. Luke “Drugged, Raped, and Sexually Assaulted Kesha.” See New Court Ruling at 9. If the court had decided Dr. Luke was a public figure, even for limited purposes, Dr. Luke would need to prove that he did not drug, rape, or sexually assault Kesha. It is much harder to prove a negative. But because the court ruled that Dr. Luke is a private person and not a public figure of any kind, Kesha must prove that she was drugged, raped, and assaulted by Dr. Luke in order to successfully defend herself against the defamation claims.

If Dr. Luke were convicted of any charges related to the allegations he drugged and assaulted Kesha, it would be easier for Kesha to defend herself. But there were no convictions. It was reported that Kesha told her mother she might “need to go to the hospital” but neither went to the hospital or made reports to police, telling her mother, “I don’t want to be a rape-case victim. I just want to get my music out.”

The court correctly pointed out that “If the jury ultimately finds that the statements Kesha…made are not false, she cannot be liable for defamation under any circumstances.” New Court Ruling at 9. While the court also noted in that event, the court’s analysis of the public/private figure issue “would be academic” (New Court Ruling at 9), the court’s ruling already has more than a theoretical impact on the course of litigation because it would make Dr. Luke’s burden a little lighter and Kesha’s in defending herself significantly heavier.

The court also ruled Kesha cannot successfully defend herself concerning other statements she made about Dr. Luke. Kesha reportedly acknowledged telling Lady Gaga that Dr. Luke also raped Katy Perry. New Court Ruling at 21. The court found, “There is no evidence whatsoever that [Dr. Luke] raped Katy Perry or that Katy Perry, whose sworn testimony [that she was not raped] is unrefuted, must not be believed.” Id. How much the single statement to Lady Gaga harmed Dr. Luke would still be an issue for trial, but, if not challenged, the court’s ruling that it did defame Dr. Luke could entitle him to some amount of money damages.

Even though the court did not expressly discuss the public figure issue with respect to the Katy Perry statements, it is still a factor. The court found Dr. Luke “met [his] heavy burden of establishing entitlement to judgment that Kesha published a false statement about [him] to a third party that was defamatory per se.” New Court Ruling at 21. If Dr. Luke were a public figure, he might still need to prove that Kesha made the statement knowing it was false, or, that she made it with reckless disregard (also called “gross responsibility”) for the truth. The court found had found with respect to Kesha’s statements Dr. Luke assaulted her, that he did not need to show actual malice, in part because he’s not a “media defendant.” Id. at 13-14.

Kesha’s lawyers said they “plan to immediately appeal” the court’s rulings. If they succeed in overturning the findings, particularly the findings that Dr. Luke is a private figure and that he does not need to show any statements about him were made with actual malice, they will also succeed in making it easier to prove Kesha is not liable for defamation for anything she said about Dr. Luke.

By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2020. All rights reserved.

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