Tuesday, May 7, 2019
Reverses Court of Appeal Opinion Affirming Granting of Special Motion to Strike, Declares CCP §426.16’s Catchall Provision Limited to Speech That Contributes to Public Debate
By a MetNews Staff Writer
Commercial; statements that are not subject to an express exemption are potentially protected by the anti-SLAPP statute—but those made by a service in confidential reports pertaining to websites, provided to businesses contemplating advertising on them, are not shielded because they are not sufficiently tied to public discussions of public issues, the California Supreme Court held yesterday.
Justice Mariano-Florentino Cuéllar wrote for a unanimous court in embracing the view of the First District’s Div. One in its 2004 opinion in Wilbanks v. Wolk which says that for a special motion to strike to lie, “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.”
In the case before the court, FilmOn.com Inc., which provides web-based entertainment, for profit, sued DoubleVerify, Inc. for trade libel, slander, and other intentional torts based on reports to Internet advertisers that FilmOn streams videos with “adult content” and frequently violates copyrights. DoubleVerify made an anti-SLAPP motion, pursuant to Code of Civil Procedure §425.16, and Los Angeles Superior Court Judge Terry A. Green granted it.
He found that DoubleVerify came under the catchall provision in the anti-SLAPP statute protecting “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
Appeals Court Opinion
Div. Three of this district’s Court of Appeal affirmed on June 29, 2017 in an opinion by then-Los Angeles Superior Court Judge Michael Johnson, now with an alternate dispute resolution firm, who was sitting on assignment. Johnson said:
“We conclude the trial court properly found DoubleVerify engaged in conduct in furtherance of its constitutional right of free speech in connection with an issue of public interest.”
Johnson quoted Milbanks as saying that Though the public interest requirement “means that in many cases the statement or conduct will be a part of a public debate,” adding the italics. He commented that “an ongoing public debate is not a sine qua non for protection under the anti-SLAPP statute where the statement concerns an issue of widespread public interest.”
For that proposition, he cited the Sixth District’s 2011 opinion in Cross v. Cooper which, in a footnote, expressed “concern about new, judicially created rules narrowing anti-SLAPP protection,” pointing to Milbanks.
Criticism of Wilbanks
“[A]s the Cross court explained, ‘the Wilbanks court provided no analysis’ for this ruling, and ‘simply cited, without further discussion,’ three cases that neither involved statements concerning issues of widespread public interest, nor suggested that this category should be further restricted.”
The pro tem justice went on to say:
“[I]it 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.”
Supreme Court Reversal
Rejecting that view, Cuéllar declared that “even if adult content on the Internet and FilmOn’s particular streaming model are in fact issues of public interest, we agree with the court in Wilbanks” that this is not a sufficient basis for an anti-SLAPP motion.
“Contrary to DoubleVerify’s arguments, the Wilbanks rule adds no additional requirement beyond those already in the catchall provision,” he wrote. “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.”
The preamble says:
“The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance….”
Reports Not Protected
Applying the law, as announced in yesterday’s opinion, to the facts, Cuéllar said:
“[W]e 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.”
Cuéllar pointed out:
“DoubleVerify issues its reports not to the wider public—who may well be interested in whether FilmOn hosts content unsuitable for children or whether its streaming platform infringes copyright—but privately, to a coterie of paying clients. Those clients, in turn, use the information DoubleVerify provides for their business purposes alone. The information never entered the public sphere, and the parties never intended it to.”
No Bright Line
The jurist added, however:
“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.”
The case is FilmOn.com v. DoubleVerify, Inc., 2019 S.O.S. 2144.
Copyright 2019, Metropolitan News Company