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Supreme Court Refines 'Public' in SLAPP Suits

By William Vogeler, Esq. on May 09, 2019

The California Supreme Court re-opened the door for a libel suit that was thrown out under the state's so-called strategic lawsuits against public participation.

The anti-SLAPP statute provides for a special motion to strike meritless claims early on in a case, but only if the claims involve a person's free speech rights or the right to petition concerning a public issue. In FilmOn.com v. DoubleVerify, the supreme court refined when those rights concern an issue of public interest.

The plaintiff had sued the defendant for distributing allegedly libelous statements to a group of advertisers. They, the Court said, are not "the" public.

Not the Public

DoubleVerify, which provides confidential reports to clients, told them that FilmOn was engaged in "copyright infringement" and "adult content" through its streaming service. In 2014, FilmOn sued for libel, tortious interference with contract, and other claims. The defendant responded with a SLAPP motion.

A trial judge granted the motion and dismissed the complaint. FilmOn appealed, but the appellate court affirmed. The Motion Picture Association of America and other media groups gave their support to DoubleVerify in the legal battle. In a letter to the appeals court, the MPAA said the "internet advertising ecosystem needed information about websites engaged in illegal conduct" and applauded how DoubleVerify fought against "an attempted chilling of free speech."

The state supreme court, however, said the appeals court got it wrong. Justice Mariano-Florentino Cuellar said a SLAPP motion applies to speech that furthers public conversation about a public issue. "It seems plain enough that DoubleVerify's reports did no such thing," he wrote. "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."

Not Intended to Be Public

DoubleVerify provided information about FilmOn for business purposes. Cuellar said the parties never intended the information for the public. Ultimately, the court concluded DoubleVerify's report did not further "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," under Code of Civil Procedure Section 425.16. The Hollywood Reporter called it "big legal win that will impact free speech cases" in the state.

The sequel in FilmOn case is headed to the trial court.

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