Wednesday, July 26, 2017
Court of Appeal Holds:
Lawsuit Over Labeling of Websites Was a SLAPP
Panel Says It Doesn’t Matter That Characterizations of Sites’ Content Came In Private Reports Rather Than Public Statements
By a MetNews Staff Writer
An action against a company that provides private reports to subscribing companies describing the content of the plaintiff’s website as including adult and copyright-infringing matter was properly dismissed pursuant to an anti-SLAPP motion, the Court of Appeal for this district has held.
Div. Three’s opinion, by Acting Justice Michael Johnson, was filed June 29 and certified for publication yesterday. It affirms a decision by Los Angeles Superior Court Judge Terry A. Green.
The plaintiff is FilmOn.com, an Internet-based entertainment media provider. Alleging trade libel, slander, and various business torts, it sued DoubleVerify, Inc., which provides private reports to subscribing companies which are considering advertising on websites.
Its reports listed FilmOn’s website under the categories of “Copyright Infringement-File Sharing” and “Adult Content.” The plaintiff alleged that this resulted in loss of advertising revenue to it.
It set forth in its complaint that “some of FilmOn’s programming may be properly characterized as R-rated,” but insisted that “the vast majority of the programming available on FilmOn does not fit within any definition of adult content.” While a U.S. district court had issued some injunctions against making certain films available, the law in connection with new technology is unsettled.
Green, in granting the anti-SLAPP motion, said the first prong of the statute—that the action stems from speech “in connection with a public issue on matters of public interest”—was met saying that DoubleVerify’s labeling of website content was “not any different, really, than the Motion Picture Association putting ratings on movies.” He said a “massive amount of attention” had been devoted to whether FilmOn was involved in copyright infringement, rendering DoubleVerify’s characterizations a matter of public interest.
With respect to the second prong, he found, he found a lack of probability that FilmOn would win the case because DoubleVerify’s statements were essentially accurate.
On appeal, FilmOn conceded that “preventing copyright infringement and children’s access to adult content are issues of public concern,” but insisted that DoubleVerify’s characterizations of website content were “private statements made in a commercial context.”
Johnson, a Los Angeles Superior Court judge sitting on assignment, responded:
“FilmOn’s argument rests on the flawed premise that to qualify as speech in connection with an issue of public interest, ‘the statement must itself contribute to the public debate.’ ”
To the contrary, “FilmOn’s insistence that statements concerning issues of widespread interest must also contribute to a public debate is contrary to the legislative mandate to broadly construe the anti-SLAPP statute in favor of protection,” he said, adding:
“[I]t is irrelevant that DoubleVerify made its reports confidentially to its subscribers, because the contents of those reports concerned issues of widespread interest to the public. Thus, for example, if an ‘R’ rating for adult content is a matter of ‘public interest’ when communicated by the MPAA to the public at large, it remains a matter of public interest when communicated by DoubleVerify in confidential reports to its clients. Likewise, if FilmOn’s alleged copyright infringement is an issue of public interest when reported by the press, it remains so when included in DoubleVerify’s confidential reports. Neither 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. The trial court correctly found that DoubleVerify made a threshold showing that the challenged causes of action arose from protected activity.”
The case is FilmOn.com v. DoubleVerify, Inc., B264074.
The attorneys on appeal were Ryan G. Baker, Jaime W. Marquart, Christian A. Anstett and Blake D. McCay of Baker Marquart, for Film-On, and Lincoln D. Bandlow and Margo J. Arnold of Fox Rothschild for DoubleVerify.
Copyright 2017, Metropolitan News Company