*** Update *** On June 13, 2023, the New York Court of Appeals issued an opinion holding that the “sham exception” is inconsistent with New York’s absolute privilege, which protects statements made in a lawsuit from ever forming the basis of a defamation lawsuit. At the same time, the Court held that the statements made in preparation for a lawsuit, including sending a draft complaint to reporters before filing the lawsuit, are only protected by a qualified privilege, which means the statements must be made in good faith. Therefore, the Court concluded that Dr. Luke’s defamation lawsuit against Kesha must still go to trial, so that a jury can decide whether she made her pre-lawsuit statements in good faith or as a “sham” (in order to pressure him into releasing her from her contracts with him).
Note: The Court also decided two other issues: It held that New York’s new anti-SLAPP law applies to lawsuits filed before the new law’s effective date and continued after that date, starting from the effective date. So, if Kesha wins her anti-SLAPP motion against Dr. Luke, then he must pay all of the attorneys’ fees she incurred starting from the effective date of the new anti-SLAPP law. The Court also decided that Dr. Luke is a “limited purpose public figure” due to his self-acknowledged prominence in the music industry, which means he must meet a higher standard than “private figures” when suing for defamation. Specifically, he must prove that Kesha knew her statements about him were either false or probably false, not merely that she did not do her due diligence before making her statements.
On April 22, 2022, NWLC, alongside our law firm partner Latham & Watkins LLP, led an amicus brief on behalf of 35 other organizations to the New York Court of Appeals in Gottwald v. Sebert in support of singer-songwriter Kesha, who has been sued for defamation by Dr. Luke, her former producer who sexually abused her in 2005 when she was 18 years old.
In 2014, Kesha filed a sexual assault lawsuit against Dr. Luke and asked the court to release her from a contract requiring them to produce six albums together. Dr. Luke responded by filing a defamation lawsuit against Kesha based on statements she had made as she was preparing to sue him, in her lawsuit against him, and in response to his lawsuit against her. New York law typically protects statements made during or about a lawsuit from defamation liability, and so the defamation case against Kesha should have been dismissed. Instead, however, the court here allowed the defamation lawsuit against Kesha to go forward. The court focused on whether Kesha actually sued Dr. Luke in order to get out of her contract with him and said if that was the case, her statements were a so-called “sham” exception to New York’s protections against defamation liability. However, Kesha could have had multiple true reasons for bringing her sexual assault lawsuit, and this should not be a basis of denying her protections against defamation.
Our amicus brief explains that survivors of sexual abuse face retaliation all too often, including in the form of defamation lawsuits, and that fear of retaliation deters many survivors from coming forward. We also point out that people routinely bring lawsuits for multiple reasons—and ask for a variety of remedies—and that survivors should have the right to do so without being suspected of bringing a “sham” lawsuit. After all, holding sexual abuse survivors to a different standard than everyone else is nothing but a blatantly misogynistic double standard.