Anti-SLAPP Statute
Motion to Strike
Commercial Speech
Comparative Advertising
Online Advertisement
Some commercially oriented speech
will, in fact, merit anti-SLAPP protection
Section 425.16 may protect private
events and conversations
Free Speech
Petition Rights
Trade Libel
Tortious Interference with Contract
Tortious Interference with Prospective Economic
Advantage
Unfair Competition Law
Internet Law
California Law
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.
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].) 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 (FilmOn).) For instance, DoubleVerify may tag a website as containing “Adult Content,” which it then defines, in a glossary included in the report, as “ ‘ “mature 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.) FilmOn brought this lawsuit against DoubleVerify after DoubleVerify allegedly distributed confidential reports to its clients “ ‘falsely classifying 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 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.” (FilmOn, supra, 13 Cal.App.5th at pp. 719, 714.) To support its conclusion, the court analogized DoubleVerify’s confidential reports to ratings by the Motion Picture Association of America, 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.)
(…) The anti-SLAPP law was enacted “to protect nonprofit corporations and common citizens ‘from large corporate entities and trade associations’ in petitioning government.” (USA Waste of California, Inc. v. City of Irwindale (2010) 184 Cal.App.4th 53, 66.) Attempting to protect against “lawsuits brought primarily to chill” the exercise of speech and petition rights, the Legislature embedded context into the statutory preamble, “declaring that it is in the public interest to encourage continued participation in matters of public significance.” (§ 425.16, subd. (a).)
In the paradigmatic SLAPP suit, a well-funded developer limits free expression by imposing litigation costs on citizens who protest, write letters, and distribute flyers in opposition to a local project. (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1296 (1997–1998 Reg. Sess.) as amended June 23, 1997, pp. 2–3; Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs (1993) 26 Loyola L.A. L.Rev. 395, 396.) Identifying the problem as one involving particular litigants, their motivations, and the effects of litigation, the Assembly Committee on Judiciary observed that approximately 25 percent of SLAPP suits “relate to development and zoning,” while 20 percent “arise out of complaints against public officials and employees.” (Assem. Com. on Judiciary, Analysis of Sen. Bill. No. 1296, supra, at p. 3.) The Committee recognized that “such lawsuits are often pernicious, masquerading as standard defamation and interference with prospective economic advantage litigation, while really brought by well-heeled parties who can afford to misuse the civil justice system to chill the exercise of free speech . . . by the threat of impoverishing the other party.” (Ibid.) To curb what it took to be the “disturbing increase” in such lawsuits (§ 425.16, subd. (a)), the Legislature shifted burdens of proof and fees onto the lawsuit filer to “compensate the prevailing defendant for the undue burden of defending against litigation designed to chill the exercise of free speech and petition rights.” (Barry v. State Bar of California (2017) 2 Cal.5th 318, 328.)
(…) But those two decisions stand only for the proposition that section 425.16 could apply “to private communications concerning issues of public interest.” (Terry, supra, 131 Cal.App.4th at p. 1546; see also Hecimovich, supra, 203 Cal.App.4th at p. 465 [“ ‘ “ ‘The focus of the speaker’s conduct should be the public interest. . . .’ ” [Citation.] Nevertheless, it may encompass activity between private people.’ ”].) Long before Terry and Hecimovich, we held that section 425.16 may protect private events and conversations. (Navellier v. Sletten (2002) 29 Cal.4th 82, 91 [“When previously construing the statute, however, we have declined to hold ‘that section 425.16 does not apply to events that transpire between private individuals’ . . . .” quoting Briggs, supra, 19 Cal. 4th at p. 1116].) But we have never suggested quite a different proposition: that it will never matter whether the conversations were private or widely broadcasted and received, and for what purpose.
(…) Notice how the language of section 425.17, subdivision (c) and subsequent case law indicate that the provision exempts “only a subset of commercial speech” — specifically, comparative advertising. (All One, supra, 183 Cal.App.4th at p. 1217; see Simpson, supra, 49 Cal.4th at pp. 32–33 [quoting Mendoza, supra, 182 Cal.App.4th at p. 1652, for the notion that “ ‘the Legislature appears to have enacted section 425.17, subdivision (c), for the purpose of exempting from the reach of the anti- SLAPP statute cases involving comparative advertising by businesses’ ”].) So certain commercially oriented statements will fall outside the scope of section 425.17, subdivision (c). (All One, supra, 183 Cal.App.4th at p. 1217 [“the better understanding of section 425.17, subdivision (c), is that all of the speech exempted from the anti-SLAPP statute is commercial speech, but not all commercial speech is exempted thereunder”].) Like all other statements that do not fall within the scope of an exemption, such statements are eligible for anti- SLAPP protection under section 425.16.
(…) So within the framework of section 425.16, subdivision (e)(4), a court must consider the context as well the content of a statement in determining whether that statement furthers the exercise of constitutional speech rights in connection with a matter of public interest. Having established this principle, we now turn to analyzing how context should feature in a court’s analysis under the catchall provision, and to applying that framework to the facts of this case.
(…) Most often, courts strive to discern what the challenged speech is really “about” — a narrow, largely private dispute, for example, or the asserted issue of public interest. (See Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 85 [defendant’s speech was “about falsified data and plagiarism in two scientific papers, not about global warming”]; World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1572 [defendants’ attempts to solicit competitor’s agents and customers were not “about” the public issues of “workforce mobility and free competition” or “the pursuit of lawful employment”]; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 111 [defendants’ statements “were not about pollution or potential public health and safety issues in general, but about [the plaintiffs’] specific business practices”].) This focus on discerning a single topic of speech is less than satisfying; if the social media era has taught us anything, it is that speech is rarely “about” any single issue.
The inquiry under the catchall provision instead calls for a two-part analysis rooted in the statute’s purpose and internal logic. First, we ask what “public issue or issue of public interest” the speech in question implicates — a question we answer by looking to the content of the speech. (§ 425.16, subd. (e)(4).) Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest. It is at the latter stage that context proves useful.
(…) DoubleVerify is no exception. As it does now, DoubleVerify argued before the appellate court that its reports “concerned” or “addressed” topics of widespread public interest: the presence of adult content on the internet, generally, and the presence of copyright-infringing content on FilmOn’s websites, specifically. To support its argument that FilmOn’s alleged copyright infringement is a matter of public interest, DoubleVerify offered evidence that FilmOn has been subject to media reports and litigation over its streaming model. The Court of Appeal agreed, finding that DoubleVerify’s reports were made “in connection with” matters of public interest because the company’s tags “identified” content that fell within categories of broad public interest. (FilmOn, supra, 13 Cal.App.5th at p. 720.)
But the catchall provision demands “some degree of closeness” between the challenged statements and the asserted public interest. (Weinberg, supra, 110 Cal.App.4th at p. 1132.)
So even if adult content on the Internet and FilmOn’s particular streaming model are in fact issues of public interest, we agree with the court in Wilbanks that “it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.” (Wilbanks, supra, 121 Cal.App.4th at p. 898; see also Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280 [“the fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute” is not enough].)
What it means to “contribute to the public debate” (Wilbanks, supra, 121 Cal.App.4th at p. 898) will perhaps differ based on the state of public discourse at a given time, and the topic of contention. But ultimately, our inquiry does not turn on a normative evaluation of the substance of the speech. We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant — through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest. (See All One, supra, 183 Cal.App.4th at pp. 1203–1204 [finding the “OASIS Organic seal” did not “contribute to a broader debate on the meaning of the term ‘organic’ ”]; Cross v. Cooper (2011) 197 Cal.App.4th 357, 375 [finding the defendant’s conduct “directly related” to an issue of public interest because it “served the interests” of preventing child abuse and protecting children].)
(…) The inquiry of whether a statement contributes to the public debate is one a court can hardly undertake without incorporating considerations of context — including audience, speaker, and purpose.
DoubleVerify has identified the public issues or issues of public interest to which its reports and their “tags” relate. It argues FilmOn is notorious for its long history of violating copyright laws, and “FilmOn’s CEO and billionaire owner, Mr. David, regularly injects himself in the public spotlight to discuss himself, his companies, and the purported legality of FilmOn’s services.” The Court of Appeal, meanwhile, determined DoubleVerify’s report “concerned an issue of public interest” because “the presence of adult content on the Internet generally, as well as copyright infringing content on FilmOn’s websites specifically, has been the subject of numerous press reports, regulatory actions, and federal lawsuits.” (FilmOn, supra, 13 Cal.App.5th at p. 720.) It also concluded DoubleVerify’s reports were related to “the public debate over legislation to curb children’s exposure to adult and sexually explicit media content.” (Ibid.)
It is true enough that the various actions of a prominent CEO, or the issue of children’s exposure to sexually explicit media content –– in the abstract –– seem to qualify as issues of public interest under subdivision (e)(4). But even assuming so, the focus of our inquiry must be on “the specific nature of the speech,” rather than on any “generalities that might be abstracted from it.” (Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34, italics omitted.) Defendants cannot merely offer a “synecdoche theory” of public interest, defining their narrow dispute by its slight reference to the broader public issue. (Ibid.)
It seems plain enough that DoubleVerify’s reports did no such thing. DoubleVerify issues its reports not to the wider public — who may well be interested in whether FilmOn hosts content unsuitable for children or whether its streaming platform infringes copyright — but privately, to a coterie of paying clients. Those clients, in turn, use the information DoubleVerify provides for their business purposes alone. The information never entered the public sphere, and the parties never intended it to.
Yet no single element is dispositive — not DoubleVerify’s for-profit status, or the confidentiality of the reports, or the use to which its clients put its reports. Nor does the combination of these contextual factors create a “commercial speech” category onto which we automatically map the presence or absence of anti-SLAPP protections. Some commercially oriented speech will, in fact, merit anti-SLAPP protection.
Consider, for example, Industrial Waste & Debris Box Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135, 1148 (Industrial Waste), in which the appellate court found that a for- profit consultant’s report fell within the ambit of the catchall provision. “Commercial” though that report may have been, it analyzed public reports, landfill records, and state agency data to conclude a client’s competitor — the plaintiff waste hauler — had overcalculated and misreported the rate at which it diverted waste for reuse, recycling, and composting. (Id. at p. 1143.) Following a rough approximation of the two-part framework we outline here, the court decided first that “limited landfill capacity and the environmental effects of waste disposal” are indeed issues of “significant interest” to the public and municipal governments; and second, that the report “shed light on these subjects” — that is, contributed to the issue of public interest — by deriving data from public reports and commenting on “whether and to what degree waste hauling companies in Sonoma County were meeting government standards.” (Id. at pp. 1148–1149.) These findings, in turn, prompted the sanitation board to alter its contracts and policies. (Id. at p. 1144.)
It is in the extent of its contribution to, or participation in, the public discussion that DoubleVerify’s report diverges from the report at issue in Industrial Waste. As the court in that case aptly noted, “whether speech has a commercial or promotional aspect is not dispositive” of whether it is made in connection with an issue of public interest. (Id. at p. 1150.)
(…) What this union of content and context lets us discern in this case is that DoubleVerify’s report does not qualify for protection under the catchall provision of the anti-SLAPP statute.
The scenario before us involves two well-funded for-profit entities engaged in a private dispute over one’s characterization –– in a confidential report –– of the other’s business practices. Because our “primary goal is to determine and give effect to the underlying purpose of” the anti-SLAPP statute (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332), this context matters. It allows courts to liberally extend the protection of the anti-SLAPP statute where doing so would “encourage continued participation in matters of public significance,” but withhold that protection otherwise. (§ 425.16, subd. (a).) And here, it allows us to discern what content alone conveys less clearly: DoubleVerify did not issue its report in furtherance of free speech “in connection with” an issue of public interest. (§ 425.16, subd. (e)(4).)
(California Supreme
Court, May 6, 2019, FilmOn.com Inc., v. DoubleVerify Inc., S244157)
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