FilmOn.com v. DoubleVerify
B264074
| Cal. Ct. App. | Jul 25, 2017Background
- DoubleVerify provides advertisers confidential reports that label websites with content "tags" (e.g., “Copyright Infringement-File Sharing,” “Adult Content”) to guide ad placement and protect brand safety.
- FilmOn operates streaming websites that rely heavily on advertising revenue and was labeled in some DoubleVerify reports with the above tags.
- FilmOn sued DoubleVerify for trade libel, tortious interference, false advertising, unfair competition and related business torts, alleging the tags were false and caused advertisers to pull ads.
- DoubleVerify filed an anti-SLAPP special motion to strike, asserting the reports constituted protected speech on matters of public interest (adult content exposure and online copyright infringement) and submitted press reports and court rulings about FilmOn.
- The trial court granted the motion, finding (1) the reports addressed issues of public interest and (2) FilmOn failed to show a probability of prevailing because DoubleVerify’s statements were essentially true.
- FilmOn appealed solely arguing DoubleVerify failed the anti‑SLAPP threshold (that the claims arose from protected activity); the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DoubleVerify’s confidential classification reports are "protected activity" under the anti‑SLAPP statute | FilmOn: The reports are private, routine commercial classifications lacking analysis/opinion and therefore not speech on a public issue | DoubleVerify: The tags communicated information about matters of public interest (adult content, copyright infringement) and thus are protected speech even if sent confidentially | Held: Protected — the tags concerned issues of public interest and were in furtherance of free speech; private distribution does not defeat protection |
| Whether statements must publicly contribute to an ongoing debate to be "public interest" speech | FilmOn: Protection requires contributing to public debate; private communications that do not enter public debate fall outside | DoubleVerify: Public debate contribution is not required where the subject is of widespread public interest | Held: Contribution to public debate is not required where the statement concerns an issue of widespread public interest; anti‑SLAPP must be construed broadly |
| Whether simple certification/classification is outside anti‑SLAPP protection (OASIS argument) | FilmOn: Analogous to OASIS — certification/labeling commercial products is not protected because it does not further public speech | DoubleVerify: Unlike OASIS, the harm here arises from the content of the communicative tag itself; tags convey information relevant to public concerns | Held: OASIS is distinguishable; DoubleVerify’s communications conveyed substantive information tied to public interest and were protected |
| Whether FilmOn made a threshold showing its claims did not arise from protected activity | FilmOn: Labels caused business harm and thus are actionable commercial statements | DoubleVerify: The claims are based on communicative acts concerning public issues and thus fall within §425.16’s first prong | Held: FilmOn failed to overcome threshold — court affirmed that the claims arose from protected activity |
Key Cases Cited
- Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53 (anti‑SLAPP two‑step framework)
- Navellier v. Sletten, 29 Cal.4th 82 (focus on defendant’s activity as basis for anti‑SLAPP analysis)
- Rivero v. American Federation of State, County, and Municipal Employees, AFL–CIO, 105 Cal.App.4th 913 (three‑category framework for public interest)
- Nygård, Inc. v. Uusi–Kerttula, 159 Cal.App.4th 1027 (statute must be construed broadly; issue of public interest includes matters the public cares about)
- Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106 (broad construction and recognition of public concern standard)
- OASIS (All One God Faith, Inc. v. Organic & Sustainable Industry Standards, Inc.), 183 Cal.App.4th 1186 (distinguishing protection for articulation of standards from commercial certification activity)
- Cross v. Cooper, 197 Cal.App.4th 357 (rejecting narrow requirement that statements must contribute to ongoing public debate)
- Wilbanks v. Wolk, 121 Cal.App.4th 883 (discussing limits on private communications but distinguished where issue is widespread public interest)
- Terry v. Davis Community Church, 131 Cal.App.4th 1534 (private communications can be protected when they concern public interest)
- Weinberg v. Feisel, 110 Cal.App.4th 1122 (attributes of public interest — more than mere curiosity)