Kesha got handed a legal setback last week in her ongoing six-year legal battle with her former producer Dr. Luke, who the pop star accused of drugging and raping her in 2005. A New York judge ruled that the singer did defame Dr. Luke, a decision that confused — if not outraged — her fans and sexual assault survivors.
But some legal scholars say that while the law was applied correctly to Dr. Luke’s defamation suit against Kesha, the law is outdated, and should change, especially as defamation suits are on the rise.
The decision is a small part of a much bigger legal battle between Kesha — whose full name is Kesha Rose Sebert — and her former producer Dr. Luke — whose real name is Lukasz Gottwald — dating back to 2014. Kesha, now 32, sued her former mentor for allegedly drugging and raping her in 2005 and ongoing verbal abuse.
He countersued for defamation, claiming his former protege was trying to get out of her contract.
At the crux of the ruling was a private text exchange from 2016 between Kesha and singer Lady Gaga, in which Kesha said singer Katy Perry “was raped by the same man.”
Perry and Dr. Luke, who is now 46, have denied the allegation.
“There is no evidence whatsoever that Gottwald raped Katy Perry,” New York Supreme Court Judge Jennifer G. Schecter wrote, ruling that Kesha’s text was a false statement and defamatory.
Schecter ruled Kesha defamed Dr. Luke because he was not a public figure, noting that he is famous only within the music industry. To defame a public figure, one has to prove actual malice. For private citizens, the bar is much lower.
“The judge is hamstrung quite a bit by the law,” said Susan E. Seager, who teaches at the University of California at Irvine School of Law and specializes in the First Amendment. “The law is rigid and stupid because the way it analyzes who is and who isn’t a public figure. This mid-level celebrity should be a public figure because of his prominence in the music industry.”
“If he were a public figure, she wouldn’t have to prove it was true, she just had to show she thought it was true,” Seager said. “She’s been stripped of that powerful defense."
Schecter also ruled that Kesha owes Dr. Luke over $373,000 for interest on late royalty payments.
Kesha’s lawyers said that they plan to appeal the decision.
“Dr. Luke looks forward to the trial of his case, where he will prove that Kesha’s other false statements about him were equally false and defamatory,” Dr. Luke’s attorney, Christine Lepera told the Associated Press in a statement.
However, Wang said that current defamation law is outdated.
“Defamation law is hundreds of years old and inherited from Great Britain and we’re using it today in a very different context,” Wang said. “People use their phones as if they’re speaking, and then you have in writing for all the world to see, people talking freely or sharing intimate moments.”
“The law and our technology aren’t really matched yet,” Wang said. “In the context of litigation, everything in emails and texts and even Snapchats don’t go away. Unless the law changes or legislation gets passed, young people need to be very careful.”
Even though Kesha texted Lady Gaga privately about Perry, it’s defamatory because Gaga is a third party, experts say.
“What defamation law really encourages is for you to go to a person and say to their face, ‘You’re a rapist and I hate you,’” Seager said. “If you tell one other person outside the two of you the bad thing, it’s thereby published, even if it doesn’t show up in the newspaper.”
Despite winning this round, Wang noted that in reality, victories in defamation cases may have limited upside because they breathe new life into older accusations.