Metropolitan News-Enterprise


Judges, Lawyers Under Scrutiny


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Suit Over Quotes From Phony Film Reviewer Is Not Subject to Anti-SLAPP Motion, C.A. Rules


By a MetNews Staff Writer


A suit against Sony Pictures over the use of manufactured quotes from a nonexistent reviewer in ads for four films was not subject to a motion to strike under the anti-SLAPP statute, this district’s Court of Appeal has ruled.

In an opinion filed Jan. 27 and ordered published yesterday, Div. One said the film advertisements were commercial speech which did not qualify for protection under the statute, Code of Civil Procedure Sec. 425.26.

The statute makes suits subject to a special motion to strike if the cause of action arises out of acts “in furtherance of the...right of petition or free

speech under the United States or California Constitution in connection with a public issue.”

Justice Robert Mallano, writing for himself and Presiding Justice Vaino Spencer, rejected Sony’s argument that the advertisements for the four films were entitled to First Amendment protections because the films being advertised were themselves an exercise of free speech.

Mallano declared:

“Under Sony’s absolutist approach, every film advertisement, no matter how false, would be outside the scope of consumer protection laws. We reject that position.”

Justice Reuben Ortega dissented, saying Los Angeles Superior Court Judge Charles W. McCoy should have granted the motion to strike the suit.

The action was brought by a group of film viewers who sought seeking injunctive relief, restitution and disgorgement from Sony under the California Unfair Competition Law, the False Advertising Law, and the Consumers Legal Remedies Act.

A Sony employee creating advertising for the four films-”Vertical Limit,” “The Animal,” “A Knight’s Tale,” and “Hollow Man”-inserted quotations praising them and attributed them to film critic David Manning of the Ridgefield Press in Ridgefield, Conn. No critic by that name worked for the publication, and the quotes never appeared in it.

Sony senior managers were apparently unaware of the deception.

Mallano conceded that the films themselves “constitute noncommercial speech under the First Amendment notwithstanding any economic motivation in making them.” But it does not follow, he said, that the advertising for them was entitled to the same level of constitutional protection.

“[T]he advertisements did not reflect any character or portion of the films,” the justice explained. “Rather, they contained a fictitious critic’s favorable opinion of the films. As such, the advertisements constitute commercial speech and are subject to regulation under consumer protection laws.”

Mallano said that “as a practical matter” adopting Sony’s position “would shield all sorts of mischief.”

He observed:

“For example, a film could be advertised as having garnered ‘Three Golden Globe Nominations’ when it had received none. An advertiser of a biography could use the word ‘autobiographical’ even though the subject of the work had nothing to do with its creation and had renounced it from the beginning. And a newspaper or magazine could promote itself to customers who run ads by grossly inflating its circulation numbers.”

In taking issue with his colleagues, Ortega called the lawsuit “the most frivolous case with which I have ever had to deal,” and said McCoy should have used the anti-SLAPP statute to dispose of it. Both the films and the advertisements promoting them were entitled to free speech protection, he asserted.

Ortega said that since the content of the quotes attributed to Manning amounted to rhetorical hyperbole which could not be proven either true or false, the plaintiffs had no chance of prevailing on their claims.

“In the context of consumer protection laws and their goal of protecting the public from potentially misleading advertising,” he declared, “the fact that David Manning is not a film critic for The Ridgefield Press is of so little significance as to have no effect, as a matter of law, upon a reasonable consumer.”

He added:

“Because this case involves only statements of opinion and rhetorical hyperbole that are not actionable, there is no danger that granting the special motion to strike would permit false advertisements containing verifiably false statements of fact.”

The case is Rezec v. Sony Pictures Entertainment, Inc., 04 S.O.S. 924.


Copyright 2004, Metropolitan News Company