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New York appeals court rules new free speech rules shouldn’t impact on Dr Luke v Kesha defamation case

By | Published on Monday 14 March 2022


A New York appeals court has overturned a ruling made last year in the ongoing defamation legal battle between Kesha and producer Dr Luke which would make it harder for the latter to prove that he was defamed by the former, while also opening him up to a damages claim.

That original ruling last year was based on new free speech laws in New York state, but the appeals court said last week that those new rules should not be applied retroactively so that they impact on active disputes.

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.

At the heart of the wider legal battle was 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. Hence the defamation action.

In 2020, as the defamation case slowly worked its way through the system, the judge overseeing the proceedings ruled that Luke – as someone who mainly works behind the scenes in the music industry – was not a ‘public figure’.

That was important because, under New York law, that decision has an impact on what needs to be proven in Luke’s defamation case. If the producer is deemed a public figure, not only does he need to prove that Kesha’s rape claims are untrue, but also that they were made “with actual malice”. But, as he is not a public figure, he only need prove the former.

However, in 2020 New York state passed some new anti-SLAPP laws. These are laws designed to protect free speech by targeting what are known as ‘strategic lawsuits against public participation’, basically frivolous litigation that mainly aims to shut people up, rather than actually right any alleged wrong in court.

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?

When that question was posed in court, Kesha’s lawyer argued that “this is exactly the type of case that [the New York legislature] had in mind when they decided to immediately correct this statute”. But Luke’s legal rep countered that the new laws didn’t explicitly say that they were to be applied retroactively and therefore they shouldn’t be.

Judge Jennifer Schecter ultimately sided with Kesha’s team, ruling that the new laws do apply in her dispute with Luke, meaning that he would have to prove actual malice in order to win his defamation case. And, if Kesha won, she could seek damages from the producer.

However, the Luke side appealed, and last week the appeals court formally disagreed with Schecter. They basically concurred with what Luke’s team said at last year’s hearing. The new anti-SLAPP laws “did not specify that the new legislation was to be applied retroactively”, and therefore it shouldn’t be.

Unsurprisingly, the Kesha side has already said it plans to appeal the appeal. A spokesperson for her legal team said: “Today’s opinion is manifestly erroneous and contrary to the conclusion reached by approximately 20 other courts. We will promptly seek court of appeals review”.