Filmon.Com Inc. v. Doubleverify Inc.
| Decision Date | 06 May 2019 |
| Docket Number | S244157 |
| Citation | 7 Cal.5th 133,439 P.3d 1156,246 Cal.Rptr.3d 591 |
| Court | California Supreme Court |
| Parties | FILMON.COM INC., Plaintiff and Appellant, v. DOUBLEVERIFY INC., Defendant and Respondent. |
Baker Marquart, Ryan G. Baker, Scott M. Malzahn, Jaime W. Marquart, Christian A. Anstett and Blake D. McCay, Los Angeles, for Plaintiff and Appellant.
Fox Rothschild, Lincoln D. Bandlow, Los Angeles, Margo J. Arnold, Beverly Hills, and Rom Bar-Nissam for Defendant and Respondent.
Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Los Angeles, and Thomas R. Burke, San Francisco, for Motion Picture Association of America, Inc., The Hearst Corporation, Tegna Inc., California News Publishers Association and First Amendment Coalition as Amici Curiae on behalf of Defendant and Respondent.
The Legislature enacted Code of Civil Procedure section 425.16 to address so-called strategic lawsuits against public participation (SLAPP). ( Code Civ. Proc., § 425.16 [the anti-SLAPP statute].)1 This anti-SLAPP statute makes available a special motion to strike meritless claims early in litigation—but only if the claims arise from acts in furtherance of a person's "right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." ( § 425.16, subd. (b).) In a catchall provision relevant to this case, the statute specifies that such acts include "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." ( § 425.16, subd. (e)(4).) But nowhere does the statute further define these terms.
FilmOn.com Inc. (FilmOn) is a for-profit business entity that distributes web-based entertainment programming. In this case, FilmOn sued DoubleVerify Inc. (DoubleVerify), another for-profit business entity that offers online tracking, verification and "brand safety" services to Internet advertisers. FilmOn alleged that DoubleVerify disparaged its digital distribution network in confidential reports to DoubleVerify's paying clients. DoubleVerify responded by filing an anti-SLAPP motion to strike.
We granted review to decide whether the commercial nature of a defendant's speech is relevant in determining whether that speech merits protection under the catchall provision. To resolve this question, we also clarify how the context of a statement more broadly—including the identity of the speaker, the audience, and the purpose of the speech—informs the same analysis.
What we hold is that the context of a defendant's statement is relevant, though not dispositive, in analyzing whether the statement was made "in furtherance of" free speech "in connection with" a public issue.
( § 425.16, subd. (e)(4).) In an age of easy public access to previously private information through social media and other means, context allows us to assess the functional relationship between a statement and the issue of public interest on which it touches—deciding, in the process, whether it merits protection under a statute designed to "encourage continued participation in matters of public significance." ( § 425.16, subd. (a).)
In giving effect to this statutory purpose, we find 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, even where the topic discussed is, broadly speaking, one of public interest. This is not because confidential statements made to serve business interests are categorically excluded from anti-SLAPP protection. It is instead because DoubleVerify's reports are too tenuously tethered to the issues of public interest they implicate, and too remotely connected to the public conversation about those issues, to merit protection under the catchall provision.
Because the Court of Appeal found DoubleVerify's reports protected under the anti-SLAPP statute, and held that context is irrelevant to the anti-SLAPP analysis under section 425.16, subdivision (e)(4), we reverse.
Internet use has become pervasive in less than a generation, and along with it, advertising through online platforms. (See Interactive Advertising Bureau, IAB Internet Advertising Revenue Report (May 2018) < https://www.iab.com/wp-content/uploads/2018/05/IAB-2017-Full-Year-Internet-Advertising-Revenue-Report.REV2_.pdf> [as of May 2, 2019].)2 To ensure their advertising dollars are wisely spent and the ads are placed on sites with content appropriate for their target customers, businesses monitor the websites on which they advertise or may wish to advertise. One company offering such monitoring services—which include collecting and packaging information about a website's content, viewers, and advertising practices—is defendant DoubleVerify.
For its large stable of clients, DoubleVerify gathers and provides information about the websites on which the clients are interested in advertising. The businesses pay for the reports and agree to keep them confidential. In return, they receive from DoubleVerify information on the location of the website's viewers, whether a competitor advertises on the website, where the website displays advertisements, how long the advertisements are shown, and—crucial to this litigation—a description of the website's content. Such a description comes in the form of a "tag" or "label classifying the website's content." ( FilmOn.com v. DoubleVerify, Inc. (2017) 13 Cal.App.5th 707, 712, 221 Cal.Rptr.3d 539 ( FilmOn ).) For instance, DoubleVerify may tag a website as containing "Adult Content," which it then defines, in a glossary included in the report, as " ‘ "[m]ature topics which are inappropriate viewing for children including explicit language, content, sounds and themes." ’ " ( Ibid. ) Similarly, DoubleVerify also has a "Copyright Infringement: Streaming or File Sharing" tag, defined as " ‘ "Sites, presently or historically, associated with access to or distribution of copyrighted material without appropriate controls, licensing, or permission; including but not limited to, sites electronically streaming or allowing user file sharing of such material." ’ " ( Ibid. )
Some of the websites DoubleVerify labeled as containing "Adult Content" or "Copyright Infringement" material belonged to plaintiff FilmOn. FilmOn provides entertainment content on the Web, including "hundreds of televisions channels, premium movie channels, pay-per-view channels and over 45,000 video-on-demand titles." ( FilmOn , supra , 13 Cal.App.5th at p. 712, 221 Cal.Rptr.3d 539.) FilmOn brought this lawsuit against DoubleVerify after DoubleVerify allegedly distributed confidential reports to its clients " ‘falsely classif[ying] the FilmOn Websites under the categories of "Copyright Infringement-File Sharing" and "Adult Content." ’ " ( Ibid. ) FilmOn alleges that "as a direct result of [DoubleVerify's] false and disparaging statements published in the [ ] Reports," FilmOn incurred damages because "ad partners and potential ad partners have refused to advertise through websites in FilmOn's network." Claiming that its websites neither engage in copyright infringement nor feature adult content, FilmOn sued DoubleVerify for trade libel, tortious interference with contract, tortious interference with prospective economic advantage, and violation of California's unfair competition law.
DoubleVerify responded by filing an anti-SLAPP motion. The trial court granted the motion, and the Court of Appeal affirmed. The Court of Appeal agreed with the trial judge that DoubleVerify's reports "concerned issues of interest to the public" because "the public ha[s] 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." ( FilmOn , supra , 13 Cal.App.5th at pp. 719, 714, 221 Cal.Rptr.3d 539.) To support its conclusion, the court analogized DoubleVerify's confidential reports to ratings by the Motion Picture Association of America (MPAA), writing, "the Motion Picture Association of America (MPAA) engages in conduct quite similar to DoubleVerify's activities by rating movies concerning their level of adult content, and the MPAA does so, because the public cares about the issue." ( Id. at p. 720, 221 Cal.Rptr.3d 539.)
As is relevant to our review, the court rejected the argument that DoubleVerify's reports, in fact, are different from MPAA's ratings. ( FilmOn , supra , 13 Cal.App.5th at p. 720, 221 Cal.Rptr.3d 539.) According to FilmOn, DoubleVerify's reports differ from the MPAA's film ratings because the latter are made widely available to the public, while DoubleVerify's reports are delivered to individual clients, and must be kept confidential. The court disagreed, stating its conclusion in absolute terms: "it is irrelevant that DoubleVerify made its reports confidentially to its subscribers," since "[n]either the identity of the speaker nor the identity of the audience affects the content of the communication, or whether that content concerns an issue of public interest." ( Id. at p. 723, 221 Cal.Rptr.3d 539.) So, ( Ibid. ) In short, "[w]hether a statement concerns an issue of public interest depends on the content of the statement," and only that content, "not the statement's speaker or audience." ( Id. at p. 722, 221 Cal.Rptr.3d 539.)
We granted review to decide if and how the context of a statement—including the identity of the...
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Case Comments
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