Filmon.com. v. DoubleVerify, Inc.
13 Cal. App. 5th 707
Cal. Ct. App. 5th2017Background
- FilmOn (internet streaming service) sued DoubleVerify (ad-quality vendor) for trade libel, tortious interference, false advertising and related business torts, alleging confidential client reports misclassified FilmOn websites as "Copyright Infringement-File Sharing" and "Adult Content," causing advertisers to pull ads and damaging FilmOn's business.
- DoubleVerify prepared confidential, subscriber-only reports that tag websites for advertisers to assess brand safety and ad placement; the tags were accompanied by a glossary defining categories.
- FilmOn alleged the "Copyright Infringement" and "Adult Content" tags were false or misleading and caused loss of advertising revenue.
- DoubleVerify filed an anti-SLAPP special motion to strike under Cal. Code Civ. Proc. § 425.16, arguing its reports were protected speech on matters of public interest and that its classifications were accurate.
- The trial court granted the anti-SLAPP motion, finding DoubleVerify's reports addressed public-interest topics (adult content exposure and copyright infringement) and FilmOn failed to show a probability of prevailing because the statements were essentially true.
- FilmOn appealed, contesting only the first anti-SLAPP prong (whether the challenged claims arose from protected activity); the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DoubleVerify's tags/reports constitute activity "in furtherance of" free speech on a public issue under § 425.16 | FilmOn: tags are simple commercial classifications, private and not part of public debate, so not protected | DoubleVerify: tags report on matters of public interest (adult content, copyright infringement) and are protected even if conveyed confidentially to clients | Held: Reports involved matters of public interest and were protected speech; threshold prong satisfied |
| Whether private/confidential communications lose anti-SLAPP protection because not publicly disseminated | FilmOn: private, subscriber-only reports cannot be public-issue speech | DoubleVerify: § 425.16 protects private communications if they concern public issues | Held: Confidential reports are protected when content concerns widespread public interest; audience/speaker identity irrelevant |
| Whether basic classification/certification (vs. opinion) is outside anti-SLAPP protection | FilmOn: mere certification/classification (little analysis) is commercial conduct distinct from protected speech | DoubleVerify: the communicated tags are the expressive conduct complained of and directly relate to public issues | Held: Distinction in OASIS is inapplicable; here claims are based on the content of communications, so protection applies |
| Applicability of anti-SLAPP analysis categories/principles | FilmOn: argues limited audience and commercial nature reduce public-interest character | DoubleVerify: points to media coverage, regulatory attention, and litigation over FilmOn as evidence of public interest | Held: Court applies Rivero categories and related precedent; media/regulatory attention shows public interest, so anti-SLAPP threshold met |
Key Cases Cited
- Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53 (governing two-step anti-SLAPP analysis)
- Navellier v. Sletten, 29 Cal.4th 82 (focus on defendant's activity as basis for anti-SLAPP protection)
- Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO, 105 Cal.App.4th 913 (three-category framework for "public interest")
- Cross v. Cooper, 197 Cal.App.4th 357 (rejecting requirement that statements must contribute to an ongoing public debate to be protected)
- Nygård, Inc. v. Uusi-Kerttula, 159 Cal.App.4th 1027 (broad construction of "public interest" under § 425.16)
- All One God Faith, Inc. v. Organic & Sustainable Industry Standards, Inc., 183 Cal.App.4th 1186 (distinguishing protected speech about standards from non-protected act of certifying products)
- Wilbanks v. Wolk, 121 Cal.App.4th 883 (discussing private communications and public-issue requirement)
- Terry v. Davis Community Church, 131 Cal.App.4th 1534 (private internal communications can be protected if they concern public-interest topics)