In September 2010, the US magazine “In Touch” published an article entitled “David’s Dangerous Betrayal” which consisted of an interview with Irma Nici, described as a former high-class call girl, claiming that she had slept with David Beckham, who had agreed to pay her US$10,000 for “one night of passion”. The publisher wisely ensured that the relevant edition of the magazine was unavailable in the United Kingdom both in hard copy and online. Copies were available in Germany where, it appears, David Beckham has brought successful legal proceedings.
On 24 September 2010, David Beckham issued proceedings for libel, slander and intentional infliction of emotional distress in the Superior Court of the State of California. The proceedings were issued against Bauer Publishing Company LP, Bauer Media Group Inc, Bauer North America Inc, Michelle Lee the Editor of “In Touch”, Irma Nici and Does 1 to 50 (being the writers, photographers, editors, distributors, retailers and others involved in the publication). It was alleged that the publications were false and made with actual malice and had caused Beckham emotional distress, mental anguish and economic harm. Damages were claimed in the sum of US$25 million along with exemplary damages.
On 18 November 2010 Bauer issued a Motion to Strike based on California’s Anti-SLAPP statute – shifting the burden to the plaintiff of proving the probability of prevailing. It was contended that David Beckham could not show actual malice – that is subjective knowledge of falsity or serious doubts about accuracy. It was claimed that Bauer had three sources and faced only a bare denial from the plaintiff and that, as a result, the magazine believed the article to be “absolutely true”.
On 10 January 2011, David Beckham’s lawyers made an unsuccesful application for pre-motion discovery. This was dismissed (see the draft order here). The Judge, Manuel L Real (of whom, more later) held that the motion was a “fishing expedition” that failed to satisfy the legal goal, as it were, of showing the discovery was essential to opposing the anti-SLAPP motion. This decision was the subject of a post on the Unruly of Law blog.
The substantive motion has now been heard. David Beckham’s lawyer argued that a basic investigation by the magazine would have shown that Beckham was elsewhere when the alleged trysts occurred. He asked the judge to allow the case to proceed so that he could conduct depositions that would bolster Beckham’s case. However, On 14 February 2011 Judge Manuel Real dismissed the action. There is, apparently, no written opinion. The Judge said that Beckham is a public figure and claims of adultery against him are of interest to the public. He went on to say that there was no evidence “In Touch” exhibited malice.
David Beckham’s lawyers said they will appeal the decision and continue their fight against “In Touc”h and its owner, Bauer Publishing Company. His spokesman said
“They have not provided one shred of evidence to support the claim this story is true. David Beckham’s clear evidence proved that this is without foundation. Unfortunately, the U.S. legal system requires us to show that the magazine acted maliciously“
“In Touch” did not ask the judge to rule on the truth or falsity of the article, said its attorney, Elizabeth McNamara. Instead, it sought to have the lawsuit dismissed on the grounds that the magazine did not act maliciously. There is a report of the case in the Los Angeles Times – was also front page news in yesterday’s “Sun”. There is, again, a post about the decision on the Unruly of Law blog.
In the absence of a written opinion it is difficult to know the precise basis of the Judge’s decision. Although it is clear that “malice” does, indeed, have to be established in a case of this kind, the publicly available documents show that “In Touch” was told, in terms, before publication that the story was a lie and that it has followed on an earlier threat by the same magazine to publish a different lie. It is not clear how the Judge dealt with “In Touch’s” decision to prefer the testimony of Ms Nici to this clear denial.
Judge Manuel L Real is a controversial figure. The 87 year old was appointed by President Lyndon Johnson in 1966. In 2006 he survived impeachment – the hearing before a committee of the House of Representatives can be seen here). The LA Times has reported that the Judicial Council of the U.S. 9th Circuit Court of Appeals has examined 89 cases in which Real’s conduct has been challenged. He has been accused of failing to provide reasons for decisions in 72 cases over the years. It is said that “Judiciary analysts have calculated that Real’s reversal rate in some years has been as high as 10 times the average for federal district“. There are interesting profiles on the Judgepedia and an older one on “Behind the Bench”.
We await the decision of the Ninth Circuit Court of Appeals with interest.