WWW- A case against KISS rocker Gene Simmons is turning into a textbook example of why implied defamation cases should not be actionable, even if the plaintiff is not a public figure.

Georgeann Ward, an ex-girlfriend of Simmons, alleges he defamed her in a VH-1 documentary that juxtaposed photographs of her with a voiceover describing his sexual conquests. Simmons contends he was only describing how he once behaved as a “24-hour whore” who only thought about sex.

But in a questionable decision, a New York judge denied his motion to dismiss for failure to state a claim, saying the photos support the implication that Ward participated in his promiscuous behavior.

One of the photos used in the documentary depicts Simmons and other KISS members in “sexually provocative poses with various women,” Manhattan Supreme Court Justice Rosalyn Richter noted. Even though Ward is only a bystander,an inference could be drawn that plaintiff, who is smiling in the photograph, was herself amenable to casual sexual encounters with Simmons.

What’s troubling here is that, according to Richter, a simple smile can make the photo “reasonably susceptible of a defamatory meaning.” Following this logic, if Ward had been scowling, she wouldn’t have a case — and who knows how her facial expression may have changed while the photo was being posed and taken?

The judge also rejected Simmons’ defense that allegations of promiscuity are no longer defamatory per se because society has become more tolerant of consensual sex between unmarried people. “[D]efendants do not cite to any legal authority or social science data to support their argument,” she said.

If a jury does draw defamatory inferences, Simmons’ only remaining defense would be that Ward really was at his “beck and call” for casual sex.

In her complaint, she says they had a “monogamous romantic relationship” for three years. But Richter wrote that “If, in fact, discovery reveals that plaintiff and Simmons had engaged in a sexual relationship, defendants may be able to establish their affirmative defense of truth.”

Given Simmons’ history, Richter must have her tongue firmly in cheek.