Filmon.Com. Inc. v. Doubleverify Inc.Filmon.Com. Inc. v. Doubleverify Inc.
FilmOn.com Inc. (FilmOn) is a for-profit business entity that distributes web-based entertainment programming. In this case, FilmOn sued DoubleVerify Inc. (DoubleVerify), another for-profit business entity that offers online tracking, verification and “brand safety” services to Internet advertisers. FilmOn alleged that DoubleVerify disparaged its digital distribution network in confidential reports to DoubleVerify‘s paying clients. DoubleVerify responded by filing an anti-SLAPP motion to strike.
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. (
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.
I.
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].)2 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
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 classify[ing] 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
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 ha[s] 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.)
As is relevant to our review, the court rejected the argument that DoubleVerify‘s reports, in fact, are different from MPAA‘s ratings. (FilmOn, supra, 13 Cal.App.5th at p. 720.) According to FilmOn, DoubleVerify‘s reports differ from the MPAA‘s film ratings because the latter are made widely available to the public, while DoubleVerify‘s reports are delivered to individual clients, and must be kept confidential. The court disagreed, stating its conclusion in absolute terms: “it is irrelevant that DoubleVerify made its reports confidentially to its subscribers,” since “[n]either the identity of the speaker nor the identity of the audience affects the content of the communication, or whether that content concerns an issue of public interest.” (Id. at p. 723.) So, “if an ‘R’ rating for adult content is a matter of ‘public interest’ when communicated by
We granted review to decide if and how the context of a statement — including the identity of the speaker, the audience, and the purpose of the speech — informs a court‘s determination of whether the statement was made “in furtherance of” free speech “in connection with” a public issue. (
II.
A.
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, “declar[ing] that it is in the public interest to encourage continued participation in matters of public significance.” (
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
Consistent with the statute‘s purpose, its text defines conduct in furtherance of the rights of petition and free speech on a public issue not only by its content, but also by its location, its audience, and its timing. (See
Admittedly, the catchall provision contains no similar contextual references to help courts discern the type of conduct and speech to protect. (See
Indeed, that the language of the provision refers to ”other conduct in furtherance” supports the inference that this provision encompasses conduct and speech similar to what is referenced in subdivision (e)(1) through (e)(3). (
The reference to “any other conduct” in subdivision (e)(4) also underscores its role as the “catchall” provision meant to round out the statutory safeguards for constitutionally protected expression. (See, e.g., Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 164 [observing that subdivision (e)(4) “provides a catchall“].) In protecting “any other conduct” that meets the requirements laid out in its text (
It would be all but impossible, as part of such a careful analysis, to justify ignoring the ordinary contextual cues affecting how people generally evaluate speech. Our courts have not ignored such cues. (See San Diegans, supra, 13 Cal.App.5th at p. 106 [the identity of the actor matters; “[Defendant] Inewsource is not a construction company. It is in the news reporting business, and the contracts [San Diegans for Open Government] challenges shape the way inewsource and KPBS gather, produce, and report the news“]; Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1653 (Mendoza) [the audience of the speech (in this case, an employer) matters; “We are also swayed by the public interest in safe workplaces, and in the liability which may attach to employers who fail to investigate prospective employees where prudence justifies such an investigation. Thus, as a foundational, broad-based proposition, we conclude that providing employment-screening reports is a constitutionally founded, protected activity within the meaning of the anti-SLAPP statute“]; All One God Faith, Inc. v. Organic & Sustainable Industry Standards, Inc. (2010) 183 Cal.App.4th 1186, 1204 (All One) [the purpose of the speech matters; “The purpose of the ’ “OASIS Organic” seal’ is to promote the sale of the product to which it is affixed, not the standard or its elements“].)
Nor are contextual considerations relevant merely to some generalized evaluation implicit in the analysis. In articulating what constitutes a matter of public interest, courts look to certain specific considerations, such as whether the subject of the speech or activity “was a person or entity in the public eye” or “could affect large numbers of people beyond the direct participants” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898 (Wilbanks)); and whether the activity “occur[red] in the context of an ongoing controversy, dispute or discussion” (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119 (Du Charme)), or “affect[ed] a community
The Court of Appeal‘s contrary position in this case is not supported by the cases on which it relied. Leaning on Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534 (Terry) and Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450 (Hecimovich), the appellate court held that “[n]either the identity of the speaker nor the identity of the audience affects the content of the communication, or whether that content concerns an issue of public interest.” (FilmOn, supra, 13 Cal.App.5th at p. 723.) But those two decisions stand only for the proposition that
Indeed, those contextual factors mattered in both Terry and Hecimovich. In Terry, the court considered that the speakers were church leaders attempting to protect children in the church‘s youth groups, as evidenced by the fact that “the
B.
DoubleVerify concedes that
Nor does it seem the Legislature contemplated that outcome when it added
We do not, as FilmOn urges, sort statements categorically into commercial or noncommercial baskets in analyzing whether they are covered by the catchall provision. We merely conclude
III.
A.
So within the framework of
Our courts have ably distilled the characteristics of “a public issue or an issue of public interest.” (
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. (
The travails of the lower courts demonstrate that virtually always, defendants succeed in drawing a line –– however tenuous –– connecting their speech to an abstract issue of public interest. (See Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 601 [defendants’
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.6 The Court of Appeal agreed, finding that DoubleVerify‘s reports were made “in connection with” matters of public interest because the company‘s tags “identif[ied]” 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.)
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 th[e] interests” of preventing child abuse and protecting children].)
Contrary to DoubleVerify‘s arguments, the Wilbanks rule adds no additional requirement beyond those already in the catchall provision. It is instead a reasonable interpretation of the provision‘s existing requirement that statements be made “in connection with” an issue of public interest — an
We adopted the same approach in Briggs, where we construed
B.
When it declined to consider the context in which DoubleVerify made its statements, the Court of Appeal overlooked critical details bearing on the court‘s scrutiny of the relationship between speech and the matter of public interest with which it is assertedly “in connection.” (
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,
So the second part of the test moves from a focus on identifying the relevant matters of public interest to addressing the specific nature of defendants’ speech and its relationship to the matters of public interest. We cannot answer this second question simply by looking at the content of the challenged statements –– though no doubt in some cases that content will prove illuminating. In this case, that content comprises three columns listing various Internet domains and subdomains, “[t]otal [impressions]” from viewers, and the thematic “[c]ategories” to which each domain belongs, as defined by DoubleVerify. That DoubleVerify identifies FilmOn as falling within certain categories, however, tells us nothing of how that identification relates to the issues of copyright and adult content. We can answer that question only by looking at the broader context in which DoubleVerify issued its reports, discerning through that context whether the company‘s conduct qualifies for statutory protection by furthering the public conversation on an issue of public interest. (See
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
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, “[w]hether 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.) After all, the anti-SLAPP statute protects more than those activities ” ‘which meet the lofty standard of pertaining to the heart of self-government.’ ” (Briggs, supra, 19 Cal.4th at p. 1116, quoting Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1046–1047.) But nothing in the statute or our precedent elides the potential relevance of that commercial character in deciding whether speech merits protection under the catchall provision. Instead, a court must consider whether a statement — including the identity of its speaker, for example, or the audience sought — contributes to or furthers the public conversation on an issue of public interest. It is by carefully observing this wedding of content and context that we can discern if conduct is “in furtherance of” free speech “in connection with” a public issue or issue of public interest. (
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. (
Because the Court of Appeal held to the contrary, we reverse.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
Notes
In its entirety,
(1) The statement or conduct consists of representations of fact about that person‘s or a business competitor‘s business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person‘s goods or services, or the statement or conduct was made in the course of delivering the person‘s goods or services.
(2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding, or investigation, except where the statement or conduct was made by a telephone corporation in the course of a proceeding before the California Public Utilities Commission and is the subject of a lawsuit brought by a competitor, notwithstanding that the conduct or statement concerns an important public issue.”