Daily Blast - May 7, 2019 - Lewis Brisbois Bisgaard & Smith LLP

On May 6, 2019, the California Supreme Court issued its decision in FilmOn.com Inc. v. DoubleVerify Inc. (May 6, 2019 S244157)__Cal.5th__, examining whether the context of a defendant’s speech is relevant in determining if that speech merits anti-SLAPP protection under California Code of Civil Procedure Section 425.16(e)(4) ) (“catchall provision”). (Slip opn., p. 6.) The catchall provision specifies that speech merits protection if it is conducted in “furtherance of…the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Id. at p. 1.) The Supreme Court decided context matters.

DoubleVerify Inc. (“DoubleVerify”) gathers information about websites in which its clients are interested in advertising. (Slip opn., p. 3.) The reports are distributed exclusively to the clients and kept confidential. (Ibid.) This information includes whether a website contains adult content or content that violates copyright laws. (Id. at p. 4.) Websites owned by FilmOn.com (“FilmOn”) were among the websites that DoubleVerify labeled to its customers as containing adult content or content that violates copyright laws. (Ibid.) As a result, FilmOn sued DoubleVerify for trade libel, tortious interference with contract, tortious interference with prospective economic advantage, and violation of California’s unfair competition law, alleging that their conduct caused them to lose advertisers and revenue. (Id. at ps. 4-5.) DoubleVerify filed an anti-SLAPP motion in response to FilmOn’s lawsuit arguing that the public has a right to know the content of websites. (Id. at p. 5.) Both the trial court and the appellate court agreed. (Id.)

The California Supreme Court overturned the decision of the two lower courts. (Slip opn., p. 3.) It ruled that the context of a statement—identity of the speaker, the audience, and the purpose of the speech—helps to determine whether a statement warrants anti-SLAPP protection under the catchall provision. (Id. at p. 6.) The court developed a two-part test for analyzing the catchall provision. (Id. at p. 17.) First, the court considers whether there is a public issue or an issue of public interest by analyzing the content of the speech. (Ibid.) The court next considers “what functional relationship exists between the speech and the public conversation about some matter of public interest,” which is where the court will examine context. (Ibid.) The court further ruled that the statement in question must contribute to the public debate. (Id. at p. 19.) Although DoubleVerify’s information regarding the nature of websites is of public interest, it never entered the public sphere because DoubleVerify’s clients kept the information to themselves. (Id. at p. 23.) Therefore, DoubleVerify’s work did not merit anti-SLAPP protection.

The case is long and comprehensive. For a complete analysis of the issue, please read the opinion, a copy of which is attached.