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Dr Luke will have to prove actual malice in Kesha defamation legal battle, court rules
By Chris Cooke | Published on Thursday 1 July 2021
A new ruling in the ongoing legal battle between Kesha and producer Dr Luke will significantly increase the burden on the latter to prove that the former defamed him by making allegations of rape.
Luke’s defamation lawsuit against Kesha is all that remains of a long-running, multi-layered and quite complicated legal battle between the two former musical collaborators, which – along the way – has involved litigation in multiple American states.
At the heart of it all is Kesha’s allegation of rape against Luke. He denies that allegation, and in turn alleges that she only made that claim in a bid to force his hand in contract negotiations. This means, as far as he is concerned, Kesha defamed him, hence the defamation lawsuit.
In February last year, the judge overseeing the defamation action in the New York courts made some initial rulings. Not regarding Kesha’s core allegation of rape, but on whether the producer was a ‘public figure’ and also in relation to a text message Kesha sent Lady Gaga in which she also claimed that the producer had raped Katy Perry. Both those rulings favoured Luke’s side.
In the first of those two rulings, the judge concluded that Luke was not, in fact, a public figure. This was important because, under New York law, it has an impact on what needs to be proven in a defamation case. If the producer was deemed a public figure, not only would Luke need to prove that Kesha’s rape claims were untrue, but also that they had been made “with actual malice”. But, as he is not a public figure, he only need prove the former.
Except, Kesha’s team then cited new anti-SLAPP laws that were passed in New York State last year. Those new laws seek to stop people from attacking the free speech rights of others through the filing of frivolous litigation. Under the new anti-SLAPP laws, in defamation cases in New York the “actual malice” requirement can also apply when it’s a non-public figure pursuing the litigation if the allegedly defamatory statement relates to issues of public concern. The new rules would also mean Kesha could seek damages from Luke if her allegations were proven in court.
Once Kesha’s legal team brought up the new anti-SLAPP laws the big question was whether or not said laws should be applied retroactively so that they impact on a case that was originally filed long before the new rules were in force. Would it be fair to put new obligations onto a plaintiff who could not have foreseen such obligations when they first decided to go legal?
According to the New York Post, in a court hearing yesterday Dr Luke’s lawyer Christine Lepera argued that the new laws don’t explicitly say that they are to be applied retroactively, and therefore they shouldn’t be. Doing so, Lepara added, would unfairly increase her client’s burden in proving defamation, changing the rules of the game despite his litigation having already been going through the motions for quite some time.
Kesha’s lawyer Leah Godesky, meanwhile, said that “this is exactly the type of case that [the New York legislature] had in mind when they decided to immediately correct this statute”. Beyond Luke’s increased burden, it was important that Kesha could seek damages if her allegations were proven in court. Otherwise, Godesky added, “even if Kesha were to prevail at trial and the jury found that she was telling the truth about her sexual assault – she wouldn’t really win”, because of all the costs she has incurred fighting the litigation.
Judge Jennifer Schecter ultimately sided with Kesha’s team, ruling that the new laws do apply in this case. Which means Luke will have to prove actual malice when the dispute finally gets the court, while Kesha will also be able to file a counter-claim seeking damages. Although, Schecter noted, that counter-claim can only be properly considered if the jury in the main dispute rules that the musician’s rape allegations are sound.
Despite arguing against allowing the new laws to apply in this case, Luke’s legal team subsequently played down the significance of Schecter’s decision, stating that yesterday’s hearing was about a “a technical legal issue”.
They added: “At trial, Dr Luke will prove to the jury, as he has always maintained, that Kesha spread a vicious lie to get out of her contracts. Kesha refuses to make any claim against Luke that she would have had the burden of proof on – because she knows she would lose”.
