The California Supreme Court has slapped down an anti-SlAPP motion, which means FilmOn, which delivers video online, can continue its libel lawsuit against online ad information company DoubleVerify.
FilmOn had sued DoubleVerify for disparaging FilmOn in confidential reports to potential advertisers--for advising those potential clients that some FilmOn content was categorized as “Copyright Infringement-File Sharing” and “Adult Content.” DoubleVerify had countered with an anti-strategic lawsuit against public participation (anti-SLAPP) motion. Two lower courts, district and appeals, sided with DoubleVerify, saying its speech was in the public interest and thus protected, so FilmOn's libel suit was dismissed.
The Supreme Court stepped in to rule on whether the nature of a defendant's speech is relevant in deciding whether it merits anti-SLAPP protection. The court ruled that it did, and that in this case, DoubleVerify's for-profit reports do not qualify for that protection because they are "too tenuously tethered" to the public interest the speech implicates to merit protection.
Bottom line: "DoubleVerify did not issue its report in furtherance of free speech 'in connection with' an issue of public interest," the Supreme court said, reversing the appeals court decision that it did.
"The Supreme Court’s unanimous opinion restores some reason and balance to the application of the anti-SLAPP statute," said attorney Ryan Baker of Baker Marquart, who represented FilmOn. "As many commentators have observed, the anti-SLAPP “cure” has started to become the disease. Based on an over-emphasis of the Legislature’s directive to interpret the anti-SLAPP statute 'broadly,' nebulous anti-SLAPP interpretations have permitted well-heeled litigants, such as DoubleVerify, to insulate themselves from liability by connecting the speech or conduct at issue to a matter of public interest in some attenuated way. Today, the Court clarifies that the 'functional relationship' between the speech or conduct at issue and issues of public interest must be considered to determine whether that statement sufficiently encourages participation in matters of public significance to warrant anti-SLAPP protection."
