California Justices Narrow Anti-SLAPP Scope in Streaming Ad Flap

(CN) – The California Supreme Court revived a streaming service’s libel suit against a trade publication Monday in a case that could have major free speech implications for the Golden State’s entertainment industry and beyond.

The justices ruled unanimously that FilmOn, a streaming service created by controversial media magnate Alki David, can pursue its libel claims against DoubleVerify, which provides confidential reports and assessments about entertainment platforms to potential advertisers.

DoubleVerify tried to get FilmOn’s lawsuit tossed under California’s anti-SLAPP law, which protects people or organizations from being sued for making statements in the public interest. The law is most commonly applied to newspapers, television reporters and other news media organizations.

But California’s high court ruled because DoubleVerify is a trade organization that provides information confidentially to a small group of paying customers rather than the general public, anti-SLAPP does not apply.

“In giving effect to this statutory purpose, we 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 catch-all provision, even where the topic discussed is, broadly speaking, one of public interest,” Justice Mariano-Florentino Cuéllar wrote in a 28-page ruling.

Cuéllar said DoubleVerify’s reports are too removed from the public conversation to be categorically exempt from libel laws.

“This is not because confidential statements made to serve business interests are categorically excluded from anti-SLAPP protection,” he wrote. “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.”

The dispute dates to 2014, when DoubleVerify cautioned its advertiser clients to avoid FilmOn due to concerns over copyright infringement and the potential for children to access adult content.

DoubleVerify provides such assessments to clients seeking to avoid placing ads on platforms with questionable ethical practices.

But FilmOn sued DoubleVerify for libel, saying its reports maliciously misrepresented FilmOn and its offerings.

DoubleVerify moved to toss the suit on anti-SLAPP grounds, which was granted by a state court judge. FilmOn appealed to the Second Appellate District, which upheld the anti-SLAPP dismissal. The Motion Picture Association of America praised the appellate ruling, saying such lawsuits could have a chilling effect on the freedom of the press.

But as the justices indicated was possible during a hearing this past February, the high court invalidated both rulings Monday.

Cuéllar emphasized the justices were not deciding whether FilmOn’s libel claims against DoubleVerify were valid, only whether anti-SLAPP provisions should apply to the private communications of a for-profit company that provides its information to industry insiders rather than the public at large.

"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."

While FilmOn has legal hurdles to surmount in its overall pursuit of its libel claims against DoubleVerify, the justices’ ruling ensures the company will have its day in court.

As to the free speech implications in California, the justices make clear only information disseminated in a manner intended to create or contribute to the public conversation can be protected under California’s anti-SLAPP laws.

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