FilmOn.com Inc. v. DoubleVerify Inc. - 7 Cal. 5th 133, 246 Cal. Rptr. 3d 591, 439 P.3d 1156 (2019)

Rule:

The catchall provision in Code Civ. Proc., § 425.16, subd. (e)(4), demands some degree of closeness between the challenged statements and the asserted public interest. It is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate. What it means to contribute to the public debate will perhaps differ based on the state of public discourse at a given time, and the topic of contention. But ultimately, the inquiry does not turn on a normative evaluation of the substance of the speech. A court is 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, the court examines whether a defendant — through public or private speech or conduct — participated in, or furthered, the discourse that makes an issue one of public interest. This 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 interpretation informed by the statutory purpose explicitly articulated in the preamble to the anti-SLAPP statute.

Facts:

FilmOn.com Inc. was a for-profit business entity distributing web-based entertainment programming. In this case, FilmOn sued DoubleVerify Inc. (DoubleVerify), another for-profit business entity offering 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. 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 has a demonstrable interest in knowing what content was available on the Internet, especially with respect to adult content and the illegal distribution of copyrighted material. To support its conclusion, the court analogized DoubleVerify's confidential reports to ratings by the Motion Picture Association of America (MPAA). 

Issue:

Did DoubleVerify's confidential reports qualify for anti-SLAPP protection under the catchall provision? 

Answer:

No.

Conclusion:

In determining whether a confidential report evaluating a company's business practices fell within the anti-SLAPP catchall provision in Code Civ. Proc., § 425.16, subd. (e)(4), the commercial context of the report had to be considered, as well as its content. According to the court, the inclusion of contextual factors in defining the comparative advertising exception in Code Civ. Proc., § 425.17, subd. (c), did not exclude context from consideration under § 425.16, absent any indication of such legislative intent. The catchall provision required an inquiry into whether speech contributed to the public debate, which was a two-part analysis, identifying a matter of public interest and then asking what functional relationship existed between it and the speech. In this case, the report did not qualify for anti-SLAPP protection because it did not further the public conversation on any issue it addressed.