On May 6, 2019, the California Supreme Court issued a unanimous decision in FilmOn.com Inc. v. DoubleVerify Inc. that could carry big implications for California’s much-litigated anti-SLAPP law. The Supreme Court reversed the Second District Court of Appeal, which had affirmed a trial court ruling granting the defendant’s anti-SLAPP motion in a trade libel and tortious interference suit. The Supreme Court held that context matters when courts assess anti-SLAPP motions. The purpose of the speech, the speaker, and the audience will all determine—and potentially limit—the application of the anti-SLAPP law. The Supreme Court applied this framework in holding that commercial speech targeted at a select group of paying subscribers that was never intended to become public did not fall within the category of protected speech that the anti-SLAPP law covers.
California’s Anti-SLAPP Law
California’s broad anti-SLAPP law lends some firepower to litigants who believe that their free speech rights have been chilled by being sued. The anti-SLAPP statute allows a party to file a special motion to strike a complaint when the complaint arises from the exercise of the party’s free speech rights. The statute limits anti-SLAPP motions to claims “arising from any act . . . in furtherance of the person’s right of petition or free speech” under the federal or state constitutions. Significantly, the anti-SLAPP law provides that these free speech acts include “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.” But what counts as a legitimate “connection” to a “public issue” or the “public interest” has remained unclear. The California Supreme Court took the first steps toward defining these terms and—importantly for parties faced with anti-SLAPP motions—limiting the reach of the statute.
Lower Courts Grant Anti-SLAPP Motion
In the initial action, FilmOn.com, a web-based media company, sued DoubleVerify, a business that authenticates website content in proprietary reports sold to Internet advertisers. In bringing trade libel and various tortious interference claims, FilmOn alleged that DoubleVerify had described some of its websites as hosting “Adult Content” or “Copyright Infringement” material in confidential reports it generated for its subscribers. DoubleVerify, for its part, responded with an anti-SLAPP motion, arguing that this activity constituted protected speech. The trial court agreed, striking FilmOn’s complaint, and the Court of Appeal affirmed. The Court of Appeal found that DoubleVerify’s website descriptions concerned a matter of public interest and constituted the sort of speech that the anti-SLAPP law protects. It was not persuaded by FilmOn’s argument that these descriptions were never intended for circulation beyond the paying subscribers of DoubleVerify’s confidential reports and found this context irrelevant in applying the anti-SLAPP law.
The Supreme Court reversed on this point, holding that context is crucial. The purpose of the speech, the speaker, and the audience all matter when determining what counts as protected activity for anti-SLAPP motions. Because context matters, courts must analyze the connection between the speech at issue and the matter alleged to be in the public interest. “First, we ask what ‘public issue or  issue of public interest’ the speech in question implicates . . . . Second, we ask what functional relationship exists between the speech and the public conversation about some matter of public interest.” The Supreme Court found only a tangential relationship between DoubleVerify’s website descriptions and the public’s interest in monitoring website content. Because DoubleVerify labeled FilmOn’s websites in confidential reports that were only circulated to subscribers, any connection with the public interest was too attenuated to qualify under the anti-SLAPP law.
- This decision is the latest in a series of cases in which California courts have more narrowly construed the anti-SLAPP statute and suggests continued interest in the courts in defining the contours of the law.
- The mere fact that the subject matter of an activity could be in the public interest is insufficient to qualify it as protected speech under the anti-SLAPP statute. Litigants will need to demonstrate a closer connection between challenged activities and the claimed public issue.
- The Supreme Court, significantly, noted that it did not hold that all commercial speech or all confidential speech would fall outside the reach of the anti-SLAPP law. Commercial speech may still qualify as the proper subject of an anti-SLAPP motion, but the onus will be on the movant to demonstrate a real connection with a public issue.