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IP/Entertainment Case Law Updates

FilmOn.com Inc. v. DoubleVerify Inc.

California Supreme Court reverses dismissal of FilmOn’s state law claims, finding that statements in defendant’s confidential client reports were not protected speech made in furtherance of free speech in connection with public issue under California’s anti-SLAPP statute.

Plaintiff FilmOn.com Inc., a web-based entertainment streaming platform, sued DoubleVerify Inc. for trade libel, tortious interference with contract, tortious interference with prospective economic advantage and violation of California’s unfair competition law. DoubleVerify provides its clients with confidential reports that include information it collects on websites its clients may potentially advertise on, including information about the website’s viewers, whether a competitor advertises on the website, and where and how long advertisements are displayed. These reports include tags classifying websites, including as containing “Adult Content” or “Copyright Infringement.” FilmOn alleged that ad partners and potential ad partners refused to advertise with FilmOn as a result of DoubleVerify’s false and disparaging reports labeling FilmOn’s website as containing “Adult Content” or “Copyright Infringement.” 

The trial court granted, and the Court of Appeal affirmed, DoubleVerify’s motion to dismiss under California’s anti-SLAPP law. On appeal, the California Supreme Court reversed and remanded the case to the trial court. 

In analyzing the anti-SLAPP statute, the Court of Appeal agreed with the trial court that DoubleVerify’s reports “concerned issues of interest to the public” because “the public has a demonstrable interest in knowing what content is available on the Internet, especially with respect to adult content and the illegal distribution of copyrighted materials.” In support of its decision, the court of appeal compared DoubleVerify’s confidential reports to the Motion Picture Association of America (MPAA) movie ratings, noting the MPAA engaged in conduct similar to DoubleVerify’s by rating movies as to their adult content “because the public cares about the issue.”  

The appellate court rejected FilmOn’s argument that DoubleVerify’s reports differed from the MPAA’s ratings because, while the MPAA makes its ratings available to the public, DoubleVerify’s reports are delivered to specific individual clients, which agree to keep the reports confidential. The court held that the confidential nature of DoubleVerify’s reports was irrelevant because neither the identity of the speaker nor the identity of the audience impacted the determination of the type of content communicated. In other words, “whether a statement concerns an issue of public interest depends on the content of the statement” and only that content.

The California Supreme Court granted review to determine whether and how the context of a statement, including the identity of the speaker and audience, and the purpose of the speech inform a court’s determination as to whether the statement was “made in furtherance of” free speech “in connection with” a public issue, under the catchall provision—subsection (e)(4)—of the anti-SLAPP statute.  

As an initial matter, the court noted that, consistent with the statute’s purpose, its text under subsections (e)(1)-(3) defines conduct “in furtherance of” free speech on a public issue “not only by its content, but also by its location, its audience, and its timing.” Although the catchall provision lacked these references, the court concluded that nothing within it or other parts of the statute supported the conclusion that it is the provision where contextual information should be excluded. The court rejected DoubleVerify’s argument that a statement’s commercial context is irrelevant as it would render subsection (c) “redundant and mere surplusage.” Under the catchall provision, the “contextual cues” of a statement—including “whether it was private or public, to whom it was said, and for what purpose”—matter, and no exception for commercial context exists.

Next, the court explained that the required inquiry under the catchall provision involves a two-part analysis. First, the court looks to the content of the speech and determines what public issue is implicated. Second, the court asks “what functional relationship exists between the speech and the public conversation about some matter of public interest.” Context is relevant to this second step. Acknowledging that California courts have struggled with “the nexus between the challenged statements and the asserted issue of public interest” under the second step, the California Supreme Court concluded that a statement is made in connection with a public issue when it contributes to—that is to say, participates in or furthers—public conversation on the issue. This determination would not be possible without considering context—including audience, speaker and purpose of the statement. 

Looking at these contextual elements, the court concluded that DoubleVerify’s reports—“generated for profit, exchanged confidentially, without being part of any attempt to participate in a larger public discussion”—do not qualify for anti-SLAPP protection under the catchall provision because they are “too tenuously tethered” to issues of public interest implicated and “too remotely connected” to public conversation about those issues.

Summary prepared by Mary Jean Kim and David Grossman