Archive for September 2020
FilmOn.com v. DoubleVerify – Supreme Court Further Defines “Issue of Public Interest”
Time to discuss the very important opinion by the California Supreme Court in the case of FilmOn.com v. DoubleVerify. To fully understand this opinion and the reasoning behind it, it is necessary to read the entire opinion, because it beautifully builds from the roots of the anti-SLAPP statute all the way to the ultimate conclusion. But in case you don’t have that kind of time, I’ll summarize it up front, and then offer a guided tour through the opinion.
The Facts and Legal Holdings of FilmOn.com v. DoubleVerify.
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. In other words, DoubleVerify offers its conclusions about sites and content, so advertisers can be sure their ads do not end up in places they might consider to be inappropriate. FilmOn did not like what DoubleVerify had reported to its clients, and sued DoubleVerify for trade libel, tortious interference with contract, tortious interference with prospective economic advantage, and violation of California’s unfair competition law.
DoubleVerify responded by filing an anti-SLAPP motion to strike, which was granted by the Los Angeles County Superior Court, Judge Terry Green presiding. The Court of Appeal agreed with Judge Green’s conclusion that DoubleVerify’s reports “concerned issues of interest to the public” because “the public has 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.” 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.”
It is always a hail Mary to appeal to the California Supreme Court, but surprisingly the Court elected to take up this matter, “to decide whether the commercial nature of a defendant’s speech is relevant in determining whether that speech merits protection under the catchall provision. To resolve this question, we also clarify how the context of a statement more broadly – including the identity of the speaker, the audience, and the purpose of the speech – informs the same analysis.”
In a unanimous decision, the Supremes reversed the Court of Appeal, and sent the case back to Judge Green for an order denying the anti-SLAPP motion. In essence, as I have repeated here a hundred times, the Court found that context is everything. It found that determining whether the ratings issued by DoubleVerify are a matter of public interest is not viewed in a vacuum. Rather, even if it is concluded that the speech is a matter of public interest, that speech must be in furtherance of the speech on the topic.
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. (§ 425.16, subd. (e)(4).) What this union of content and context lets us discern in this case is that DoubleVerify’s report does not qualify for protection under the catchall provision of the anti-SLAPP statute.
Posted in Using a Defamation Action to Gather Evidence of the Defamation is a Risky Proposition
Watch for the anti-SLAPP trap.
People love to gossip, and they love to tell you that you are being gossiped about. But gossip is not evidence. It is a risky proposition to rely on gossip for a defamation action.
I receive calls from prospective clients who are absolutely confident that someone is defaming them. But do they have a witness to testify to what is being said? Can they offer an email as evidence? Perhaps a posting on social media? Well, no, but all I need to do is to file a complaint for them, and then we can start taking depositions to get to the heart of it.
That is a very dangerous course to chart.
In some rare circumstances, that might be viable, but watch for the ever present specter of an anti-SLAPP motion. A call today demonstrated the risks once again. The call was from an attorney, who thought he had been snared by the anti-SLAPP trap, and was seeking my guidance on how he might extricate himself.
(Changing the facts sufficiently to protect privacy), the attorney represents an employee in a wrongful termination action. The client was of course upset about being terminated, claiming that it resulted from him reporting illegal conduct, but he was equally upset about the lies the employer had supposedly told to the EDD and others, about the supposed malfeasance that had led to his termination. The client assumes that the lies were not confined to the EDD, based on some comments by a third party after his termination. The attorney knew enough about anti-SLAPP law that he steered clear of suing for the statements made to the EDD, but the defamation cause of action basically mirrored what the employer had said to the EDD.
For example, let’s say that the employer informed the EDD that the employee was fired after being seen double dipping his chips in the onion dip at a company luncheon; an act we would all agree is proper grounds for termination. Later, he goes into a bar, and when he tries to take the stool next to some other patron, that person says, “get away from me you disgusting double-dipper!” So the employee knows that the employer must be spreading the lie beyond the EDD, since why else would the person have made that statement? Based on this set of circumstances, the attorney alleged that the employer is defaming the terminated employee to third parties.
But now the employer has filed an anti-SLAPP motion, claiming that the employer made that statement only to the EDD, so the employee must be suing for statements made to the EDD, which is protected speech under the anti-SLAPP statute. Now, faced with the anti-SLAPP motion, what evidence can the attorney offer to prove the statement was made to a third party? All he has is a random statement from some unidentified person at a bar. You just can’t bet your client’s money on the assumption that you will be able to uncover a witness to support your defamation claim, especially since an anti-SLAPP motion freezes discovery (subject to leave by the court).
There might still be hope.
The case presents an interesting issue. The employer will clearly prevail on the second prong of the anti-SLAPP analysis, since the employer will simply provide a declaration stating no one within the company made the statement to any third party other than the EDD, and the plaintiff will have no evidence to counter it. But I told the attorney there is hope.
The complaint does not say that Plaintiff is suing for the statements to the EDD. Defendant is attempting to rewrite the allegations to match its recitation of the facts. Plaintiff’s action will not carry the day absent any evidence of the statements to third parties, but he might survive the anti-SLAPP motion by explaining that the allegations as stated – not as defendant chooses to interpret them – do not bring the complaint under the anti-SLAPP statute.