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.”