SAN FRANCISCO (CN) – The attorney for a video streaming service engaged in a contentious defamation lawsuit with ad tracker DoubleVerify urged California’s high court Wednesday to draw limits around the free speech protections in the state’s anti-SLAPP law.
Ryan Baker, who represents FilmOn.com, said the confidential reports DoubleVerify sells to online advertisers do not count as protected activity under a “catch-all” provision of the statute, which shields “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” from lawsuits.
“DoubleVerify has taken this law and built a legal moat around its business,” Baker told the justices, arguing lower courts had given DoubleVerify carte blanche to say whatever it wants about anything for profit and to uphold them would further confuse an already tricky area of law.
California’s anti-SLAPP, or strategic lawsuit against public participation, statute was enacted in 1992 in response to what the Legislature called “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”
Baker said DoubleVerify’s reports do not merit anti-SLAPP protection since they were not made in connection with a public interest issue and do not further the exercise of free speech.
The dispute arises from FilmOn’s 2014 defamation lawsuit, in which it claims DoubleVerify categorized it under ‘Copyright Infringement-File Sharing’ and ‘Adult Content’ in its confidential business reports, which DoubleVerify went on to sell to companies looking to place online ads. This caused some advertisers to pull their ads and others to threaten to do so, FilmOn claims.
“This court should take this opportunity to find that secret for-profit conversations sold to an audience of one, particularly when that audience of one is an advertiser who only engages in commercial speech, that does not fall under the anti-SLAPP statute,” Baker told the justices Wednesday. “Were there no guidelines, you could tie anything to a matter of public interest.”
The justices seemed to agree with him.
“What kinds of speech would not be covered by the anti-SLAPP statute?” Justice Mariano Florentino Cuellar asked DoubleVerify’s attorney Lincoln Bandlow, who answered speech that is “not in connection with a public issue,” or “just a private matter nobody has any particular interest in.”
Bandlow said the public has an interest in FilmOn’s business of distributing thousands of movies and hundreds of television channels on its various website domains, since it was sued for copyright infringement by several major motion picture studios.
“There was clearly a massive public interest in what FilmOn was doing and whether it was infringing content. There were lawsuits filed across the entire United States making this accusation,” he said.
Chief Justice Tani Cantil-Sakauye urged Bandlow to be more specific. “The court is having a problem with the broadness of your argument. It could be argued that the anti-SLAPP motion protects any kind of report, public or private, that mentions keywords or buzzwords that are in the public interest,” she said.
Bandlow took a shot. “It has to be speech that there is some empirical evidence that the public is interested in. And it has to relate to that, not just have some tangential connection.”
Cantil-Sakauye interjected, “I’m not hearing a rule. I’m kind of hearing a long rambling. What is the rule?”
Bandlow restated his earlier point, that the speech has to be “a matter of public interest.”
“Your argument is very broad, it’s hard to narrow it down,” said Justice Goodwin Liu. “But the statute doesn’t just say public issue or public interest, it says ‘in furtherance of the exercise of the constitutional right to participate in free speech.’ Would Ernst & Young, when they issue an audit report, it’s in furtherance of their right to free speech?”
Bandlow answered, “It means some conduct that helps the speech happen,” to which Justice Liu replied: “You’ve put virtually no boundaries around the public interest point.”
Attorney Rochelle Wilcox tried to narrow the argument. Arguing on behalf of amici curiae that includes The California Newspaper Publishers Association, the Motion Picture Association of America and the First Amendment Coalition, Wilcox said that while DoubleVerify’s reports are privately sold to single advertisers, they also have a public impact.
“Certainly there’s an impact based on dissemination of this information. Are we providing information that the public would deem useful? It’s not going to the public, but it is influencing behavior,” Wilcox said.
“It’s such a broad rule,” Cantil-Sakuaye said. “Every report is someone’s interest. The report wouldn’t be commissioned if more than one person isn’t interested.”
Wilcox took another stab. “It’s information that helps people make decisions about matters of public interest,” she said. “Things that have an impact on people’s lives are clearly within the scope of the statute.”
Liu didn’t seem convinced. “Impact on peoples’ lives is not a workable test. If anything, that’s everything,” he said.
The justices took the case under submission.