FilmOn’s chutzpah doesn’t pay off; labeling it a site of (c) infringement is protected by anti-SLAPP law

FilmOn.com v.
DoubleVerify, Inc., 2017 WL 2807911, No. B264074 (Cal. Ct. App. Jun. 29, 2017)
FilmOn, an
Internet-based entertainment media provider, sued DoubleVerify, a provider of
authentication services to online advertisers, for trade libel and related
claims for falsely classifying FilmOn’s websites under the categories
“Copyright Infringement-File Sharing” and “Adult Content” in confidential
reports to certain clients that subsequently cancelled advertising agreements
with FilmOn. The court of appeals affirmed the grant of DoubleVerify’s
anti-SLAPP motion.  DoubleVerify was
engaged in conduct in furtherance of its constitutional right of free speech in
connection with an issue of public interest, even though its information was
provided confidentially and not disseminated.
DoubleVerify argued that
its reports concerned matters of public interest because the prevalence of
adult content and copyright infringement online had received attention from
both the public and government regulatory agencies. DoubleVerify submitted,
among other things, press reports concerning numerous lawsuits filed by media
production companies against FilmOn, as well as complaints filed and
injunctions entered in a number of federal district courts against FilmOn for
copyright infringement.
The trial court
analogized DoubleVerify’s reports to more public media advisory efforts,
observing it was “not any different, really, than the Motion Picture
Association putting ratings on movies.”  Because of the “massive amount of attention”
paid to FilmOn’s relationship to copyright infringement, DoubleVerify’s reports
clearly concerned a matter of interest to the public. On the merits, the trial court
found FilmOn failed to establish a probability of success because the
undisputed evidence showed DoubleVerify’s statements were essentially true and
DoubleVerify did not make the statements with the intention to harm FilmOn’s
business.
On appeal, FilmOn
argued the statements at issue didn’t concern “a public issue” or “an issue of
public interest,” because (1) the reports contained only “[b]asic
classification and certification decisions” with “little to no analysis or
opinion”; and (2) the reports were made “entirely in private, to individual
companies that subscribe to [DoubleVerify’s] services.”  The anti-SLAPP statute doesn’t define the key
terms, but it should be construed broadly to protect free speech.  Thus, an issue of public interest is any
issue in which the public is interested, though mere curiosity isn’t
enough.  Moreover, the breadth of the
statute means that it covers even private communications about a public issue.
As for the claim
“[b]asic classification and certification decisions that contain little to no
analysis or opinion are not constitutionally protected activity within the ambit
of the anti-SLAPP statute,” the court of appeals examined All One God Faith,
Inc. v. Organic & Sustainable Industry Standards, Inc. (2010) 183
Cal.App.4th 1186 (OASIS).  In that case, a
commercial trade association sought to develop an “organic” certification for
use by its members with their personal care products. A nonmember competitor
sued, arguing the certification was contrary to federal standards for the term
“organic,” and thus using an “ ‘OASIS Organic’ ” seal would be false advertising.
The court of appeals affirmed the denial of an anti-SLAPP motion, reasoning
that the association wasn’t being sued for its opinion about what made a
personal care product “organic,” but for authorizing its members to use the
seal on their products in the market. While the former might be a matter of
public concern, “certification of commercial products—the activities that [the
plaintiff] seeks to enjoin”—didn’t further such speech, because the protected
conduct, articulating a standard, would be complete before any authorization
occurred.  Thus, the act of placing a
seal on a member product communicated nothing about the proper standards for
labeling a personal care product organic. 
However, FilmOn’s business tort and trade libel claims were based
entirely upon the message communicated by DoubleVerify’s “tags.” And
advertisers only abandoned FilmOn based on the tags because they believed that
the public would be interested in whether adult content or copyright infringing
material appears on a website. Thus, the claims were based on conduct in
furtherance of speech.
Also, the conduct
concerned issues of interest to the public. DoubleVerify showed that the
presence of adult content on the Internet generally, as well as copyright
infringing content on FilmOn’s websites specifically, had been the subject of
numerous press reports, regulatory actions, and federal lawsuits. The public
debate over legislation to curb children’s exposure to adult and sexually
explicit media content also showed that DoubleVerify’s reports identifying such
content on FilmOn’s websites concerned an issue of public interest.  Common sense also supported this conclusion.
Nor did the private
nature of the communications matter. 
It’s just not true that to qualify as speech in connection with an issue
of public interest, “the statement must itself contribute to the public
debate.”

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