A Legal Analysis of Kink.com Threatened Lawsuit – Reader Comments

This is compiled from three comments made by commentator BT here.  It’s really well written, factual and informative and illustrates why you should be reading my comments as well as the blog.  BT knows this topic obviously.  Peter Acworth, you should take note here, if you are paying for legal advice you may wish to reconsider….This is what mark kernes would write if he could write….

So, here’s the deal with how a libel suit works, especially when you’re dealing with a public company. I don’t mean a company that is publicly traded on the stock market, but a company that is very much in the public eye.

First, I’m not sure that a company can claim that it has been libeled. Mr. Ackworth certainly can. But, let’s assume that Kink can sue. A couple of things: Remember that Kink has made notoriety and outrageousness a part of its business plan. It operates a dungeon. It publishes video clips designed to outrage, inflame, engorge, disgust, and excite the public. It does not fly under the radar. In that regard, its tough to argue that its OK for Kink to be outrageous in its business, but not to say something outrageous about its business. But, hey, I’m not an attorney.

So, it is, in essence, a public figure. What then does a public figure have to prove?

First, it has to prove that AHF and/or Weinstein knew or should have known that the allegations it made against Kink were false.

Second, it has to prove that AHF and/or Weinstein made the allegations against Kink even though it knew they were false – they were made with a reckless disregard of the truth.

Third, it has to prove that AHF and/or Weinstein not only made them knowing they were false – they did so with the sole intent of damaging Kink and Ackworth. That’s called malicious intent.

Finally, and this is key, even if the allegations are false; even if they were made with reckless disregard for the truth to get ‘em, Kink has to demonstrate that it has suffered demonstrable and quantifiable economic harm as a result of AHF’s/Weinstein’s allegations. There has to be economic damage directly tied to the allegations. There has to be a cause and effect. That’s the law.

Public figures – and public companies – almost never win libel suits. The bar is incredibly high. So, good luck with that one.

And, Mike, you are correct about discovery. If Kink is going to file suit, then Kink will have to cooperate with discovery. It will have to open its books to financial scrutiny to prove economic harm. And, it will have to open all of its records related to performers, injuries on set, diseases, etc.

Even if it wins, its likely to be a phyric victory from a financial standpoint and could very well lead to other regulatory actions against Kink.

Be careful what you ask for, Mr. Ackworth. You just might get it.

Right now, the Susan B. Anthony case is in relation to an Ohio state election law that makes it illegal to lie to prevent the election of a political opponent – a guy running for Congress supported Obamacare; SB Anthony lied and said that Obamacare would require taxpayers to pay for abortions, hence the guy supported federally-funded abortions. SBAnthony’s argument is that even if it was a lie, its protected under the First Amendment and the Ohio law is an unconstitutional attack on the First Amendment. Although I don’t know if California is one of them, other states have similar laws.

The whole Kink/AHF/Weinstein thing has occurred in the shadow of a political campaign related to the condom bill, but Kink was not a candidate, so I don’t know if a ruling would be directly applicable if it overturned the Ohio law and SCOTUS says: Yeah, sure in a political campaign, its OK to lie.

The other point – I don’t think even if overturned, the law would give you cover to libel someone who was not running for office because they were aligned with someone who was. But, its an interesting question.

What is clear here is that if Kink does indeed file a lawsuit – a big if – Kink will have to clear the public figure hurdle. For example, one test of a public figure is whether you have knowingly thrust yourself into the middle of a public issue. In other words, someone who is photographed walking down the street in front of a bank when a robbery takes place and is misidentified as the bank robber by the media is not a public figure – they’re just minding their own business and the media put them in the spotlight. Someone walking down the street who then goes up to a reporter and says: Hey, I saw the whole thing if you want to interview me. Here’s my home number has thrust themselves into the spotlight.

When it comes to the issue of HIV/STDs/condoms and porn, Kink has thrust itself into the middle of the issue. It’s on the board of the porn association fighting the bill; Ackworth has given news interviews on the issue; he’s made public statements about Kink’s safety records; he’s made public statements about the infamous Cameron Bay shoot; he’s been a notorious figure in the news because of gun and drug busts – although that may be carved out of a lawsuit as irrelevant to STDs; and he’s made statements about his financial position, stating that it would make more financial sense to move his business to Las Vegas and turn the Armory into a commercial development as a direct result of condom regulation. Finally, he’s embroiled in a todo with OSHA regarding his safety record.

In short ….. he’s not only public, he’s public about his safety record and his finances. He’s opened the door to a huge fishing expedition into how he operates.

No one welcomes a lawsuit because of the expense associated with just getting rid of it, but if you’re AHF, you probably don’t shy away from this fight should it come. You file as many requests for discovery as possible as quickly as possible and hope that Kink turns over records before its all over. Those records potentially become part of the public record for anyone to pore over.