Docket No. S244157
FilmOn.com Inc. v. DoubleVerify Inc.
IN THE SUPREME COURT OF
CALIFORNIA
FILMON.COM INC.,
Plaintiff and Appellant,
v.
DOUBLEVERIFY INC.,
Defendant and Respondent.
S244157
Second Appellate District, Division Three
B264074
Los Angeles County Superior Court
BC561987
May 6, 2019
Justice Cuéllar authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Kruger, and Groban concurred.
FILMON.COM INC. v. DOUBLEVERIFY INC.
S244157
Opinion of the Court by Cuéllar, J.
The Legislature enacted Code of Civil Procedure section
425.16 to address so-called strategic lawsuits against public
participation (SLAPP). (Code Civ. Proc., § 425.16 [the anti-
SLAPP statute].)1 This anti-SLAPP statute makes available a
special motion to strike meritless claims early in
litigation — but only if the claims arise from acts in furtherance
of a person’s “right of petition or free speech under the United
States Constitution or the California Constitution in connection
with a public issue.” (§ 425.16, subd. (b).) In a catchall provision
relevant to this case, the statute specifies that such 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.” (§ 425.16,
subd. (e)(4).) But nowhere does the statute further define these
terms.
FilmOn.com Inc. (FilmOn) is a for-profit business entity
that distributes web-based entertainment programming. In this
case, FilmOn sued DoubleVerify Inc. (DoubleVerify), another
for-profit business entity that offers online tracking, verification
and “brand safety” services to Internet advertisers. FilmOn
alleged that DoubleVerify disparaged its digital distribution
network in confidential reports to DoubleVerify’s paying clients.
DoubleVerify responded by filing an anti-SLAPP motion to
strike.
1
All further undesignated statutory references are to the
Code of Civil Procedure.
1
FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
We granted review to decide whether the commercial
nature of a defendant’s speech is relevant in determining
whether that speech merits protection under the catchall
provision. To resolve this question, we also clarify how the
context of a statement more broadly — including the identity of
the speaker, the audience, and the purpose of the
speech — informs the same analysis.
What we hold is that the context of a defendant’s
statement is relevant, though not dispositive, in analyzing
whether the statement was made “in furtherance of” free speech
“in connection with” a public issue. (§ 425.16, subd. (e)(4).) In
an age of easy public access to previously private information
through social media and other means, context allows us to
assess the functional relationship between a statement and the
issue of public interest on which it touches — deciding, in the
process, whether it merits protection under a statute designed
to “encourage continued participation in matters of public
significance.” (§ 425.16, subd. (a).
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 catchall provision, even where the topic
discussed is, broadly speaking, one of public interest. This is not
because confidential statements made to serve business
interests are categorically excluded from anti-SLAPP
protection. 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 under the catchall
provision.
2
FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
Because the Court of Appeal found DoubleVerify’s reports
protected under the anti-SLAPP statute, and held that context
is irrelevant to the anti-SLAPP analysis under subdivision
(e)(4), we reverse.
I.
Internet use has become pervasive in less than a
generation, and along with it, advertising through online
platforms. (See Interactive Advertising Bureau, IAB Internet
Advertising
Revenue
Report
(May
2018
<https://www.iab.com/wp-content/uploads/2018/05/IAB-2017-
Full-Year-Internet-Advertising-Revenue-Report.REV2_.pdf>
[as of May 2, 2019].)2 To ensure their advertising dollars are
wisely spent and the ads are placed on sites with content
appropriate for their target customers, businesses monitor the
websites on which they advertise or may wish to advertise. One
company offering such monitoring services — which include
collecting and packaging information about a website’s content,
viewers, and advertising practices — is defendant DoubleVerify.
For its large stable of clients, DoubleVerify gathers and
provides information about the websites on which the clients are
interested in advertising. The businesses pay for the reports
and agree to keep them confidential. In return, they receive
from DoubleVerify information on the location of the website’s
viewers, whether a competitor advertises on the website, where
the website displays advertisements, how long the
advertisements are shown, and — crucial to this litigation — a
description of the website’s content. Such a description comes
2
All Internet citations in this opinion are archived by year,
docket
number,
and
case
name
at
http://www.courts.ca.gov/38324.htm.
3
FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
in the form of a “tag” or “label classifying the website’s content.”
(FilmOn.com v. DoubleVerify, Inc. (2017) 13 Cal.App.5th 707,
712 (FilmOn).) For instance, DoubleVerify may tag a website as
containing “Adult Content,” which it then defines, in a glossary
included in the report, as “ ‘ “[m]ature topics which are
inappropriate viewing for children including explicit language,
content, sounds and themes.” ’ ” (Ibid.) Similarly, DoubleVerify
also has a “Copyright Infringement: Streaming or File Sharing”
tag, defined as “ ‘ “Sites, presently or historically, associated
with access to or distribution of copyrighted material without
appropriate controls, licensing, or permission; including but not
limited to, sites electronically streaming or allowing user file
sharing of such material.” ’ ” (Ibid.
Some of the websites DoubleVerify labeled as containing
“Adult Content” or “Copyright Infringement” material belonged
to plaintiff FilmOn. FilmOn provides entertainment content on
the web, including “hundreds of televisions channels, premium
movie channels, pay-per-view channels and over 45,000 video-
on-demand titles.” (FilmOn, supra, 13 Cal.App.5th at p. 712.
FilmOn brought this lawsuit against DoubleVerify after
DoubleVerify allegedly distributed confidential reports to its
clients “ ‘falsely classify[ing] FilmOn Websites under the
categories of “Copyright Infringement-File Sharing” and
“Adult Content.” ’ ” (Ibid.) FilmOn alleges that “as a direct
result of [DoubleVerify’s] false and disparaging statements
published in the [] Reports,” FilmOn incurred damages because
“ad partners and potential ad partners have refused to advertise
through websites in FilmOn’s network.” Claiming that its
websites neither engage in copyright infringement nor feature
adult content, FilmOn sued DoubleVerify for trade libel, tortious
interference with contract, tortious interference with
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
prospective economic advantage, and violation of California’s
unfair competition law.
DoubleVerify responded by filing an anti-SLAPP motion.
The trial court granted the motion, and the Court of Appeal
affirmed. The Court of Appeal agreed with the trial judge that
DoubleVerify’s reports “concerned issues of interest to the
public” because “the public ha[s] a demonstrable interest in
knowing what content is available on the Internet, especially
with respect to adult content and the illegal distribution of
copyrighted materials.” (FilmOn, supra, 13 Cal.App.5th at pp.
719, 714.) To support its conclusion, the court analogized
DoubleVerify’s confidential reports to ratings by the Motion
Picture Association of America, writing, “the Motion Picture
Association of America (MPAA) engages in conduct quite similar
to DoubleVerify’s activities by rating movies concerning their
level of adult content, and the MPAA does so, because the public
cares about the issue.” (Id. at p. 720.
As is relevant to our review, the court rejected the
argument that DoubleVerify’s reports, in fact, are different from
MPAA’s ratings. (FilmOn, supra, 13 Cal.App.5th at p. 720.
According to FilmOn, DoubleVerify’s reports differ from the
MPAA’s film ratings because the latter are made widely
available to the public, while DoubleVerify’s reports are
delivered to individual clients, and must be kept confidential.
The court disagreed, stating its conclusion in absolute terms: “it
is irrelevant that DoubleVerify made its reports confidentially
to its subscribers,” since “[n]either the identity of the speaker
nor the identity of the audience affects the content of the
communication, or whether that content concerns an issue of
public interest.” (Id. at p. 723.) So, “if an ‘R’ rating for adult
content is a matter of ‘public interest’ when communicated by
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
the MPAA to the public at large, it remains a matter of public
interest when communicated by DoubleVerify in confidential
reports to its clients. Likewise, if FilmOn’s alleged copyright
infringement is an issue of public interest when reported by the
press, it remains so when included in DoubleVerify’s
confidential reports.” (Ibid.) In short, “[w]hether a statement
concerns an issue of public interest depends on the content of
the statement,” and only that content, “not the statement’s
speaker or audience.” (Id. at p. 722.
We granted review to decide if and how the context of a
statement — including the identity of the speaker, the audience,
and the purpose of the speech — informs a court’s determination
of whether the statement was made “in furtherance of” free
speech “in connection with” a public issue. (§ 425.16, subd.
(e)(4).
II.
A.
The anti-SLAPP law was enacted “to protect nonprofit
corporations and common citizens ‘from large corporate entities
and trade associations’ in petitioning government.” (USA Waste
of California, Inc. v. City of Irwindale (2010) 184 Cal.App.4th
53, 66.) Attempting to protect against “lawsuits brought
primarily to chill” the exercise of speech and petition rights, the
Legislature embedded context into the statutory preamble,
“declar[ing] that it is in the public interest to encourage
continued participation in matters of public significance.”
(§ 425.16, subd. (a).
In the paradigmatic SLAPP suit, a well-funded developer
limits free expression by imposing litigation costs on citizens
who protest, write letters, and distribute flyers in opposition to
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
a local project. (See Assem. Com. on Judiciary, Analysis of Sen.
Bill No. 1296 (1997–1998 Reg. Sess.) as amended June 23, 1997,
pp. 2–3; Barker, Common-Law and Statutory Solutions to the
Problem of SLAPPs (1993) 26 Loyola L.A. L.Rev. 395, 396.
Identifying the problem as one involving particular litigants,
their motivations, and the effects of litigation, the Assembly
Committee on Judiciary observed that approximately 25 percent
of SLAPP suits “relate to development and zoning,” while 20
percent “arise out of complaints against public officials and
employees.” (Assem. Com. on Judiciary, Analysis of Sen. Bill.
No. 1296, supra, at p. 3.) The Committee recognized that “such
lawsuits are often pernicious, masquerading as standard
defamation and interference with prospective economic
advantage litigation, while really brought by well-heeled parties
who can afford to misuse the civil justice system to chill the
exercise of free speech . . . by the threat of impoverishing the
other party.” (Ibid.) To curb what it took to be the “disturbing
increase” in such lawsuits (§ 425.16, subd. (a)), the Legislature
shifted burdens of proof and fees onto the lawsuit filer to
“compensate[] the prevailing defendant for the undue burden of
defending against litigation designed to chill the exercise of free
speech and petition rights.” (Barry v. State Bar of California
(2017) 2 Cal.5th 318, 328.
Consistent with the statute’s purpose, its text defines
conduct in furtherance of the rights of petition and free speech
on a public issue not only by its content, but also by its location,
its audience, and its timing. (See § 425.16, subd. (e)(1) [“before
a legislative, executive, or judicial proceeding”]; § 425.16, subd.
(e)(2) [“in connection with an issue under consideration or
review by” a government entity]; § 425.16, subd. (e)(3) [“in a
place open to the public or a public forum in connection with an
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
issue of public interest”].) Indeed, we have previously noted that
the Legislature “ ‘equated a public issue with the authorized
official proceeding to which it connects,’ ” effectively defining the
protected status of the statement by the context in which it was
made. (Briggs v. Eden Council for Hope & Opportunity (1999
19 Cal.4th 1106, 1117, italics in original (Briggs).
Admittedly, the catchall provision contains no similar
contextual references to help courts discern the type of conduct
and speech to protect. (See § 425.16, subd. (e)(4) [“any other
conduct in furtherance of the exercise of the constitutional
right . . . of free speech in connection with a public issue or an
issue of public interest”].) But we interpret statutory language
within its context, and in light of its structure, analogous
provisions, and any other appropriate indicia of its purpose.
(See Poole v. Orange County Fire Authority (2015) 61 Cal.4th
1378, 1385 [reading the statutory language in the context of its
neighboring provisions]; Lungren v. Deukmejian (1988) 45
Cal.3d 727, 735 [“[T]he words must be construed in context, and
provisions relating to the same subject matter must be
harmonized to the extent possible.”].) Nothing in subdivision
(e)(4) or other portions of the statute supports the conclusion
that subdivision (e)(4) is the only subdivision where contextual
information is excluded from consideration in discerning the
type of conduct and speech worthy of procedural protection.
Indeed, that the language of the provision refers to “other
conduct in furtherance” supports the inference that this
provision encompasses conduct and speech similar to what is
referenced in subdivision (e)(1) through (e)(3). (§ 425.16, subd.
(e)(4), italics added; see International Federation of Professional
& Technical Engineers, Local 21, AFL-CIO v. Superior Court
(2007) 42 Cal.4th 319, 342 [explaining that where a statute lists
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
a series of specific categories followed by a catchall category, the
catchall is “ ‘ “restricted to those things that are similar to those
which are enumerated specifically” ’ ”].
The reference to “any other conduct” in subdivision (e)(4
also underscores its role as the “catchall” provision meant to
round out the statutory safeguards for constitutionally
protected expression. (See, e.g., Lieberman v. KCOP Television,
Inc. (2003) 110 Cal.App.4th 156, 164 [observing that subdivision
(e)(4) “provides a catchall”].) In protecting “any other conduct”
that meets the requirements laid out in its text (§ 425.16,
subd. (e)(4), italics added), subdivision (e)(4) proves both
broader in scope than the other subdivisions, and less firmly
anchored to any particular context. (See San Diegans for Open
Government v. San Diego State University Research
Foundation (2017) 13 Cal.App.5th 76, 101 (San Diegans
[characterizing § 425.16, subdivision (e)(4) as “a ‘catchall’ that
extends the anti-SLAPP statutes beyond actual instances of free
speech to ‘all conduct in furtherance of the exercise of the right
of free speech in connection with a public issue’ ”]; Collier v.
Harris (2015) 240 Cal.App.4th 41, 51 [same]; accord Briggs,
supra, 19 Cal.4th at p. 1122 [stating that, in contrast to
subdivision (e)(3) and (4), the first two subparts in subdivision
(e) provide “a bright-line ‘official proceeding’ test”].) This
provision consequently suggests that courts should engage in a
relatively careful analysis of whether a particular statement
falls within the ambit of “other conduct” encompassed by
subdivision (e)(4).
It would be all but impossible, as part of such a careful
analysis, to justify ignoring the ordinary contextual cues
affecting how people generally evaluate speech. Our courts have
not ignored such cues. (See San Diegans, supra, 13 Cal.App.5th
9
FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
at p. 106 [the identity of the actor matters; “[Defendant]
Inewsource is not a construction company. It is in the news
reporting business, and the contracts [San Diegans for Open
Government] challenges shape the way inewsource and KPBS
gather, produce, and report the news”]; Mendoza v. ADP
Screening & Selection Services, Inc. (2010) 182 Cal.App.4th
1644, 1653 (Mendoza) [the audience of the speech (in this case,
an employer) matters; “We are also swayed by the public
interest in safe workplaces, and in the liability which may
attach to employers who fail to investigate prospective
employees where prudence justifies such an investigation.
Thus, as a foundational, broad-based proposition, we conclude
that
providing
employment-screening
reports
is
a
constitutionally founded, protected activity within the meaning
of the anti-SLAPP statute”]; All One God Faith, Inc. v. Organic
& Sustainable Industry Standards, Inc. (2010) 183 Cal.App.4th
1186, 1204 (All One) [the purpose of the speech matters; “The
purpose of the ‘ “OASIS Organic” seal’ is to promote the sale of
the product to which it is affixed, not the standard or its
elements”].
Nor are contextual considerations relevant merely to some
generalized evaluation implicit in the analysis. In articulating
what constitutes a matter of public interest, courts look to
certain specific considerations, such as whether the subject of
the speech or activity “was a person or entity in the public eye”
or “could affect large numbers of people beyond the direct
participants” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898
(Wilbanks)); and whether the activity “occur[red] in the context
of an ongoing controversy, dispute or discussion” (Du Charme v.
International Brotherhood of Electrical Workers (2003) 110
Cal.App.4th 107, 119 (Du Charme)), or “affect[ed] a community
10
FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
in a manner similar to that of a governmental entity” (Damon v.
Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479).
The Court of Appeal’s contrary position in this case is not
supported by the cases on which it relied. Leaning on Terry v.
Davis Community Church (2005) 131 Cal.App.4th 1534 (Terry
and Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450 (Hecimovich), the
appellate court held that “[n]either the identity of the speaker
nor the identity of the audience affects the content of the
communication, or whether that content concerns an issue of
public interest.” (FilmOn, supra, 13 Cal.App.5th at p. 723.) But
those two decisions stand only for the proposition that section
425.16 could apply “to private communications concerning
issues of public interest.” (Terry, supra, 131 Cal.App.4th at p.
1546; see also Hecimovich, supra, 203 Cal.App.4th at p. 465
[“ ‘ “ ‘[T]he focus of the speaker’s conduct should be the public
interest. . . .’ ” [Citation.] Nevertheless, it may encompass
activity between private people.’ ”].) Long before Terry and
Hecimovich, we held that section 425.16 may protect private
events and conversations. (Navellier v. Sletten (2002) 29 Cal.4th
82, 91 [“When previously construing the statute, however, we
have declined to hold ‘that section 425.16 does not apply to
events that transpire between private individuals’ . . . .” quoting
Briggs, supra, 19 Cal. 4th at p. 1116].) But we have never
suggested quite a different proposition: that it will never matter
whether the conversations were private or widely broadcasted
and received, and for what purpose.
Indeed, those contextual factors mattered in both Terry
and Hecimovich. In Terry, the court considered that the
speakers were church leaders attempting to protect children in
the church’s youth groups, as evidenced by the fact that “the
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
matter was referred to the Davis Police Department for
investigation.” (Terry, supra, 131 Cal.App.4th at p. 1547; id. at
p. 1548.) In Hecimovich, too, the court highlighted the
relationship between the speech, the speaker, and the audience.
(Hecimovich, supra, 203 Cal.App.4th at pp. 465–466
[emphasizing that “communications in issue here concern the
well-being of young children in an afterschool sports program,
as discussed between and among members of the PTO, parents
of the young team members, and league officials”].) The court
below erred in using these cases to constrain its inquiry to the
content of DoubleVerify’s speech, deracinated of context.
B.
DoubleVerify concedes that section 425.16 invites courts
to consider the context in which statements were made. But it
argues that one kind of contextual cue –– commercial
context — is irrelevant except as specified in a neighboring
provision, section 425.17, subdivision (c). We disagree.
Section 425.17, subdivision (c) categorically exempts
certain expressive actions from the scope of section 425.16. To
fall within the scope of the exemption, the speaker must be “a
person primarily engaged in the business of selling or leasing
goods or services” making “representations of fact about that
person’s or a business competitor’s business operations, goods,
or services” to “an actual or potential buyer or customer, or a
person likely to repeat the statement to, or otherwise influence,
an actual or potential buyer or customer” with “the purpose of
obtaining approval for, promoting, or securing sales or leases of,
or commercial transactions in, the person’s goods or services, or
the statement or conduct was made in the course of delivering
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
the person’s goods or services.”3 (§ 425.17, subd. (c).) So whether
section 425.17, subdivision (c) exempts the speech depends not
only on the content of that speech but also the identity of the
speaker, the intended audience, and the purpose of the
statement.
3
In its entirety, section 425.17, subdivision (c), states:
“Section 425.16 does not apply to any cause of action brought
against a person primarily engaged in the business of selling or
leasing goods or services, including, but not limited to,
insurance, securities, or financial instruments, arising from any
statement or conduct by that person if both of the following
conditions exist:
(1) The statement or conduct consists of representations of
fact about that person’s or a business competitor’s
business operations, goods, or services, that is made for
the purpose of obtaining approval for, promoting, or
securing sales or leases of, or commercial transactions
in, the person’s goods or services, or the statement or
conduct was made in the course of delivering the
person’s goods or services.
(2) The intended audience is an actual or potential buyer
or customer, or a person likely to repeat the statement
to, or otherwise influence, an actual or potential buyer
or customer, or the statement or conduct arose out of or
within the context of a regulatory approval process,
proceeding, or investigation, except where the
statement or conduct was made by a telephone
corporation in the course of a proceeding before the
California Public Utilities Commission and is the
subject of a lawsuit brought by a competitor,
notwithstanding that the conduct or statement
concerns an important public issue.”
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
Notice how the language of section 425.17, subdivision (c
and subsequent case law indicate that the provision exempts
“only a subset of commercial speech” — specifically, comparative
advertising.4 (All One, supra, 183 Cal.App.4th at p. 1217; see
Simpson, supra, 49 Cal.4th at pp. 32–33 [quoting Mendoza,
supra, 182 Cal.App.4th at p. 1652, for the notion that “ ‘the
Legislature appears to have enacted section 425.17, subdivision
(c), for the purpose of exempting from the reach of the anti-
SLAPP statute cases involving comparative advertising by
businesses’ ”].) So certain commercially oriented statements
will fall outside the scope of section 425.17, subdivision (c). (All
One, supra, 183 Cal.App.4th at p. 1217 [“the better
understanding of section 425.17, subdivision (c), is that all of the
speech exempted from the anti-SLAPP statute is commercial
speech, but not all commercial speech is exempted
thereunder”].) Like all other statements that do not fall within
the scope of an exemption, such statements are eligible for anti-
SLAPP protection under section 425.16.5
4
The parties agree that DoubleVerify’s reports to its clients
are not exempted under section 425.17, subdivision (c), because
DoubleVerify was not making representations about its own
business but FilmOn’s, and DoubleVerify and FilmOn were not
competitors. (See Simpson Strong-Tie Co., Inc. v. Gore (2010
49 Cal.4th 12, 32 (Simpson) [finding that § 425.17, subd. (c) did
not apply when “ ‘the representation was not “about”
[defendant’s] or a competitor’s services or business
operations’ ”]; Stewart v. Rolling Stone LLC (2010) 181
Cal.App.4th 664, 676 (Stewart) [same].
5
We disapprove Rezec v. Sony Pictures Entertainment,
Inc. (2004) 116 Cal.App.4th 135 to the extent it is inconsistent
with this opinion.
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
DoubleVerify argues that considering commercial context
under the catchall provision would “render[] [s]ection 425.17(c
redundant and mere surplusage,” because it would involve
importing the analysis for the exemption into the analysis for
the catchall provision. But the Legislature’s decision to
explicitly require consideration of certain contextual
factors — like speaker, audience, and purpose — in defining the
comparative advertising exception should not lead us to decide
these contextual factors are categorically excluded from
consideration under section 425.16. When the statutory
language and structure otherwise cut so sharply in favor of
considering context in applying the anti-SLAPP statute, we
should not lightly assume that context may be considered only
under one subdivision merely because that subdivision explicitly
mentions certain contextual factors.
Nor does it seem the Legislature contemplated that
outcome when it added section 425.17, subdivision (c). Instead,
the relevant legislative history included language observing how
the exception allowed certain lobbying activities and marketing
to “be viewed in the context of its offering, just as a speech by a
person against the building of a waste facility in the
neighborhood.” (Sen. Judiciary Com., Analysis of Sen. Bill No.
515 (2003–2004 Reg. Sess.) as amended May 1, 2003, pp. 9–10,
italics added.) It noted that while the latter “can clearly be seen
to have been made in the context of exercising the person’s
constitutional right of speech,” the “content and context of the
former activities are clearly more in furtherance of business
considerations.” (Id. at p. 10.
We do not, as FilmOn urges, sort statements categorically
into commercial or noncommercial baskets in analyzing whether
they are covered by the catchall provision. We merely conclude
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
that the very contextual cues revealing a statement to be
“commercial” in nature — whether it was private or public, to
whom it was said, and for what purpose — can bear on whether
it was made in furtherance of free speech in connection with a
public issue. (§ 425.16, subd. (e)(4).) In other words, context
matters under the catchall provision, and commercial context is
no exception.
III.
A.
So within the framework of section 425.16, subdivision
(e)(4), a court must consider the context as well the content of a
statement in determining whether that statement furthers the
exercise of constitutional speech rights in connection with a
matter of public interest. Having established this principle, we
now turn to analyzing how context should feature in a court’s
analysis under the catchall provision, and to applying that
framework to the facts of this case.
Our courts have ably distilled the characteristics of “a
public issue or an issue of public interest.” (§ 425.16, subd.
(e)(4); see Rivero v. American Federation of State, County, and
Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913,
919–924 (Rivero) [describing three non-exclusive categories of
public interest]; Weinberg v. Feisel (2003) 110 Cal.App.4th 1122,
1132–1133 (Weinberg) [describing additional attributes of
protected
conduct].
But
they
have
struggled — understandably — to articulate the requisite nexus
between the challenged statements and the asserted issue of
public interest — to give meaning, in other words, to the “in
connection with” requirement. (§ 425.16, subd. (e)(4).
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Most often, courts strive to discern what the challenged
speech is really “about” — a narrow, largely private dispute, for
example, or the asserted issue of public interest. (See Bikkina
v. Mahadevan (2015) 241 Cal.App.4th 70, 85 [defendant’s speech
was “about falsified data and plagiarism in two scientific papers,
not about global warming”]; World Financial Group, Inc. v.
HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th
1561, 1572 [defendants’ attempts to solicit competitor’s agents
and customers were not “about” the public issues of “workforce
mobility and free competition” or “the pursuit of lawful
employment”]; Mann v. Quality Old Time Service, Inc. (2004
120 Cal.App.4th 90, 111 [defendants’ statements “were not
about pollution or potential public health and safety issues in
general, but about [the plaintiffs’] specific business practices”].
This focus on discerning a single topic of speech is less than
satisfying; if the social media era has taught us anything, it is
that speech is rarely “about” any single issue.
The inquiry under the catchall provision instead calls for
a two-part analysis rooted in the statute’s purpose and internal
logic. First, we ask what “public issue or [] issue of public
interest” the speech in question implicates — a question we
answer by looking to the content of the speech. (§ 425.16, subd.
(e)(4).) Second, we ask what functional relationship exists
between the speech and the public conversation about some
matter of public interest. It is at the latter stage that context
proves useful.
The travails of the lower courts demonstrate that virtually
always, defendants succeed in drawing a line –– however
tenuous –– connecting their speech to an abstract issue of public
interest. (See Consumer Justice Center v. Trimedica
International, Inc. (2003) 107 Cal.App.4th 595, 601 [defendants’
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
advertisements of a breast enlargement product were not “about
the general topic of herbal supplements” but were instead
“commercial speech about the specific properties and efficacy of
a particular product”]; Rivero, supra, 105 Cal.App.4th at pp.
919, 924 [rejecting union’s argument that, in publishing
statements heralding suspension of a custodial supervisor, it
was commenting on the abusive supervision of employees
throughout a publicly financed educational institution].
DoubleVerify is no exception. As it does now,
DoubleVerify argued before the appellate court that its reports
“concerned” or “addressed” topics of widespread public interest:
the presence of adult content on the internet, generally, and the
presence of copyright-infringing content on FilmOn’s websites,
specifically. To support its argument that FilmOn’s alleged
copyright infringement is a matter of public interest,
DoubleVerify offered evidence that FilmOn has been subject to
media reports and litigation over its streaming model.6 The
Court of Appeal agreed, finding that DoubleVerify’s reports
were made “in connection with” matters of public interest
because the company’s tags “identif[ied]” content that fell within
categories of broad public interest. (FilmOn, supra, 13
Cal.App.5th at p. 720.
But the catchall provision demands “some degree of
closeness” between the challenged statements and the asserted
public interest. (Weinberg, supra, 110 Cal.App.4th at p. 1132.
6
We grant DoubleVerify’s requests for judicial notice of
certain court orders and legislative history materials. (Evid.
Code, §§ 451–452.) The court orders were entered in cases
brought against FilmOn for copyright infringement, and the
legislative history materials are of bills relating to the
enactment of sections 425.16 and 425.17, subdivision (c).
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
So even if adult content on the Internet and FilmOn’s particular
streaming model are in fact issues of public interest, we agree
with the court in Wilbanks that “it is not enough that the
statement refer to a subject of widespread public interest; the
statement must in some manner itself contribute to the public
debate.” (Wilbanks, supra, 121 Cal.App.4th at p. 898; see also
Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280 [“[t]he fact
that ‘a broad and amorphous public interest’ can be connected
to a specific dispute” is not enough].
What it means to “contribute to the public debate”
(Wilbanks, supra, 121 Cal.App.4th at p. 898) will perhaps differ
based on the state of public discourse at a given time, and the
topic of contention. But ultimately, our inquiry does not turn on
a normative evaluation of the substance of the speech. We are
not concerned with the social utility of the speech at issue, or
the degree to which it propelled the conversation in any
particular direction; rather, we examine whether a
defendant — through
public
or
private
speech
or
conduct — participated in, or furthered, the discourse that
makes an issue one of public interest. (See All One, supra, 183
Cal.App.4th at pp. 1203–1204 [finding the “OASIS Organic seal”
did not “contribute to a broader debate on the meaning of the
term ‘organic’ ”]; Cross v. Cooper (2011) 197 Cal.App.4th 357,
375 [finding the defendant’s conduct “directly related” to an
issue of public interest because it “served th[e] interests” of
preventing child abuse and protecting children].
Contrary to DoubleVerify’s arguments, the Wilbanks rule
adds no additional requirement beyond those already in the
catchall provision. It is instead a reasonable interpretation of
the provision’s existing requirement that statements be made
“in connection with” an issue of public interest — an
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
interpretation informed by the statutory purpose explicitly
articulated in the preamble to the anti-SLAPP statute. Section
425.16, subdivision (a) “declares that it is in the public interest
to encourage continued participation in matters of public
significance.” Though we have cautioned that statutory
preambles do not impose substantive requirements (Briggs,
supra, 19 Cal.4th at p. 1118), our task when interpreting
legislation is to effectuate the statutory purpose –– and
“statements of purpose in a statute’s preamble can be
illuminating,” particularly if a statute is ambiguous (Yeager v.
Blue Cross of California (2009) 175 Cal.App.4th 1098, 1103).
We adopted the same approach in Briggs, where we
construed subdivision (e)(1) and (e)(2) of the anti-SLAPP
statute. (Briggs, supra, 19 Cal.4th at p. 1118.) We explained in
Briggs that although the statutory preamble did not impose “an
across-the-board
‘issue
of
public
interest’
pleading
requirement,” we understood the Legislature to equate
statements made in certain official proceedings with matters of
“public significance.” (Ibid. [“Any matter pending before an
official proceeding possesses some measure of ‘public
significance’ owing solely to the public nature of the proceeding
. . . .”].) Likewise, here, the preamble’s reference to “continued
participation” in matters of public significance (§ 425.16, subd.
(a)) adds no substantive requirement to a defendant’s burden to
show conduct “in furtherance of” free speech “in connection with
a public issue or an issue of public interest” (§ 425.16, subd.
(e)(4)). The two are instead coextensive: a statement is made
“in connection with” a public issue when it contributes to — that
is, “participat[es]” in or furthers — some public conversation on
the issue. But the inquiry of whether a statement contributes
to the public debate is one a court can hardly undertake without
20
FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
incorporating considerations of context — including audience,
speaker, and purpose.
B.
When it declined to consider the context in which
DoubleVerify made its statements, the Court of Appeal
overlooked critical details bearing on the court’s scrutiny of the
relationship between speech and the matter of public interest
with which it is assertedly “in connection.” (§ 425.16, subd.
(e)(4).) We examine those contextual details now, working
within the two-part framework we just described.
DoubleVerify has identified the public issues or issues of
public interest to which its reports and their “tags” relate. It
argues FilmOn is notorious for its long history of violating
copyright laws, and “FilmOn’s CEO and billionaire owner, Mr.
David, regularly injects himself in the public spotlight to discuss
himself, his companies, and the purported legality of FilmOn’s
services.” The Court of Appeal, meanwhile, determined
DoubleVerify’s report “concerned an issue of public interest”
because “the presence of adult content on the Internet generally,
as well as copyright infringing content on FilmOn’s websites
specifically, has been the subject of numerous press reports,
regulatory actions, and federal lawsuits.” (FilmOn, supra, 13
Cal.App.5th at p. 720.) It also concluded DoubleVerify’s reports
were related to “the public debate over legislation to curb
children’s exposure to adult and sexually explicit media
content.” (Ibid.
It is true enough that the various actions of a prominent
CEO, or the issue of children’s exposure to sexually explicit
media content –– in the abstract –– seem to qualify as issues of
public interest under subdivision (e)(4). But even assuming so,
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FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
the focus of our inquiry must be on “the specific nature of the
speech,” rather than on any “generalities that might be
abstracted from it.” (Commonwealth Energy Corp. v. Investor
Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34, italics
omitted.) Defendants cannot merely offer a “synecdoche theory”
of public interest, defining their narrow dispute by its slight
reference to the broader public issue. (Ibid.
So the second part of the test moves from a focus on
identifying the relevant matters of public interest to addressing
the specific nature of defendants’ speech and its relationship to
the matters of public interest. We cannot answer this second
question simply by looking at the content of the challenged
statements –– though no doubt in some cases that content will
prove illuminating. In this case, that content comprises three
columns listing various Internet domains and subdomains,
“[t]otal [impressions]” from viewers, and the thematic
“[c]ategories” to which each domain belongs, as defined by
DoubleVerify. That DoubleVerify identifies FilmOn as falling
within certain categories, however, tells us nothing of how that
identification relates to the issues of copyright and adult
content. We can answer that question only by looking at the
broader context in which DoubleVerify issued its reports,
discerning through that context whether the company’s conduct
qualifies for statutory protection by furthering the public
conversation on an issue of public interest. (See § 425.16,
subd. (a) [declaring it is “in the public interest to encourage
continued participation in matters of public significance”];
Wilbanks, supra, 121 Cal.App.4th at p. 898 [explaining that
conduct must “contribute to the public debate” to warrant
protection under the catchall provision].
22
FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
It seems plain enough that DoubleVerify’s reports did no
such thing. 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.
Yet no single element is dispositive — not DoubleVerify’s
for-profit status, or the confidentiality of the reports, or the use
to which its clients put its reports. Nor does the combination of
these contextual factors create a “commercial speech” category
onto which we automatically map the presence or absence of
anti-SLAPP protections. Some commercially oriented speech
will, in fact, merit anti-SLAPP protection.
Consider, for example, Industrial Waste & Debris Box
Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135, 1148
(Industrial Waste), in which the appellate court found that a for-
profit consultant’s report fell within the ambit of the catchall
provision. “Commercial” though that report may have been, it
analyzed public reports, landfill records, and state agency data
to conclude a client’s competitor — the plaintiff waste
hauler — had overcalculated and misreported the rate at which
it diverted waste for reuse, recycling, and composting. (Id. at p.
1143.) Following a rough approximation of the two-part
framework we outline here, the court decided first that “limited
landfill capacity and the environmental effects of waste
disposal” are indeed issues of “significant interest” to the public
and municipal governments; and second, that the report “shed
light on these subjects” — that is, contributed to the issue of
23
FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
public interest — by deriving data from public reports and
commenting on “whether and to what degree waste hauling
companies in Sonoma County were meeting government
standards.” (Id. at pp. 1148–1149.) These findings, in turn,
prompted the sanitation board to alter its contracts and policies.
(Id. at p. 1144.
It is in the extent of its contribution to, or participation in,
the public discussion that DoubleVerify’s report diverges from
the report at issue in Industrial Waste. As the court in that case
aptly noted, “[w]hether speech has a commercial or promotional
aspect is not dispositive” of whether it is made in connection
with an issue of public interest. (Id. at p. 1150.) After all, the
anti-SLAPP statute protects more than those activities “ ‘which
meet the lofty standard of pertaining to the heart of self-
government.’ ” (Briggs, supra, 19 Cal.4th at p. 1116, quoting
Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036,
1046–1047.) But nothing in the statute or our precedent elides
the potential relevance of that commercial character in deciding
whether speech merits protection under the catchall provision.
Instead, a court must consider whether a statement — including
the identity of its speaker, for example, or the audience
sought — contributes to or furthers the public conversation on
an issue of public interest. It is by carefully observing this
wedding of content and context that we can discern if conduct is
“in furtherance of” free speech “in connection with” a public
issue or issue of public interest. (§ 425.16, subd. (e)(4).) What
this union of content and context lets us discern in this case is
that DoubleVerify’s report does not qualify for protection under
the catchall provision of the anti-SLAPP statute.
24
FILMON.COM INC. v. DOUBLEVERIFY INC.
Opinion of the Court by Cuéllar, J.
IV.
The scenario before us involves two well-funded for-profit
entities engaged in a private dispute over one’s
characterization –– in a confidential report –– of the other’s
business practices. Because our “primary goal is to determine
and give effect to the underlying purpose of” the anti-SLAPP
statute (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332), this
context matters. It allows courts to liberally extend the
protection of the anti-SLAPP statute where doing so would
“encourage continued participation in matters of public
significance,” but withhold that protection otherwise. (§ 425.16,
subd. (a).) And here, it allows us to discern what content alone
conveys less clearly: DoubleVerify did not issue its report in
furtherance of free speech “in connection with” an issue of public
interest. (§ 425.16, subd. (e)(4).
Because the Court of Appeal held to the contrary, we
reverse.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
25
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion FilmOn.com v. DoubleVerify, Inc.
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 13 Cal.App.5th 707
Rehearing Granted
Opinion No. S244157
Date Filed: May 6, 2019
Court: Superior
County: Los Angeles
Judge: Terry A. Green
Counsel:
Baker Marquart, Ryan G. Baker, Scott M. Malzahn, Jaime W. Marquart, Christian A. Anstett and Blake D.
McCay for Plaintiff and Appellant.
Fox Rothschild, Lincoln D. Bandlow, Margo J. Arnold and Rom Bar-Nissam for Defendant and
Respondent.
Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox and Thomas R. Burke for Motion Picture
Association of America, Inc., The Hearst Corporation, Tegna Inc., California News Publishers Association
and First Amendment Coalition as Amici Curiae on behalf of Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Ryan G. Baker
Baker Marquart
777 S. Figueroa Street, Suite 2850
Los Angeles, CA 90071
(424) 652-7800
Lincoln D. Bandlow
Fox Rothschild
10250 Constellation Boulevard, Suite 900
Los Angeles, CA 90067
(310) 598-4150
Rochelle L. Wilcox
Davis Wright Tremaine
865 S. Figueroa Street, Suite 2400
Los Angeles, CA 90017-2566
(213) 633-6800
Opinion Information
| Date: | Docket Number: |
| Mon, 05/06/2019 | S244157 |
