The opinion
Filed 6/29/17; pub. order 7/25/17 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
FILMON.COM, B264074
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC561987)
v.
DOUBLEVERIFY, INC.
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Terry A. Green, Judge. Affirmed.
Baker Marquart, Ryan G. Baker, Jaime W. Marquart,
Christian A. Anstett and Blake D. McCay for Plaintiff and
Appellant.
Fox Rothschild, Lincoln D. Bandlow and Margo J. Arnold
for Defendant and Respondent.
_________________________
INTRODUCTION
Plaintiff FilmOn.com (FilmOn) is an Internet-based
entertainment media provider. Defendant DoubleVerify, Inc.
(DoubleVerify) provides authentication services to online
advertisers. FilmOn sued DoubleVerify for trade libel, slander,
and other business-related torts, alleging DoubleVerify falsely
classified FilmOn’s websites under the categories “Copyright
Infringement-File Sharing” and “Adult Content” in confidential
reports to certain clients that subsequently cancelled advertising
agreements with FilmOn. DoubleVerify moved to strike the
causes of action pursuant to the anti-SLAPP statute (Code Civ.
Proc., § 425.16), arguing its reports accurately addressed issues
of widespread public interest—namely, the existence of adult
content and copyright infringing material on publicly available
websites, such as FilmOn.1 The trial court granted the motion.
FilmOn appeals from the order striking its causes of action
against DoubleVerify. As its sole ground for appeal, FilmOn
contends DoubleVerify failed to make the requisite threshold
showing that the challenged causes of action arose from protected
activity. We conclude the trial court properly found DoubleVerify
engaged in conduct in furtherance of its constitutional right of
free speech in connection with an issue of public interest. We
affirm.
1 SLAPP is an acronym for strategic lawsuit against public
participation. (See Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 57 (Equilon).) Statutory references are to
the Code of Civil Procedure unless otherwise indicated.
2
FACTS AND PROCEDURAL BACKGROUND
1. The Parties
DoubleVerify provides authentication services relating to
the quality of digital media for online advertising. Advertising
agencies, marketers, publishers, ad networks and other
companies hire DoubleVerify to detect and prevent waste or
misuse of advertising budgets and to help take proactive
measures to maintain brand reputation. To provide this service,
DoubleVerify monitors websites designated by its clients and
determines, among other things, if the websites have content the
client may consider inappropriate. DoubleVerify compiles this
information into confidential reports for each client. These
reports consist of a spreadsheet with advertising data (such as
the length of time an ad is displayed on a website and the
regional location of the website’s viewers) and a “tag” or label
classifying the website’s content. The report is accompanied by a
glossary of definitions for each tag.
FilmOn is an Internet-based entertainment content
provider. FilmOn’s services include access to hundreds of
television channels, premium movie channels, pay-per-view
channels and over 45,000 video-on-demand titles. FilmOn
distributes its programming through several different website
domains (the FilmOn Websites). FilmOn derives a significant
portion of its revenue from advertising.
2. FilmOn’s Lawsuit
FilmOn sued DoubleVerify for trade libel, slander, tortious
interference with contract, and other business-related torts,
alleging DoubleVerify distributed reports to certain FilmOn
advertisers with false and disparaging classifications of one or
3
more of the FilmOn Websites.2 The complaint alleged
DoubleVerify’s reports “falsely classif[ied] the FilmOn Websites
under the categories of ‘Copyright Infringement-File Sharing’ and
‘Adult Content.’ ”
According to the complaint, DoubleVerify’s accompanying
glossary defined the category “ ‘Copyright Infringement:
Streaming or File Sharing’ ” 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.’ ” The glossary defined the “ ‘Adult
Content’ ” category as “ ‘[m]ature topics which are inappropriate
viewing for children including explicit language, content, sounds
and themes.’ ” The complaint acknowledged that “some of
FilmOn’s programming may be properly characterized as R-
rated,” but alleged “the vast majority of the programming
available on FilmOn does not fit within any definition of adult
content.”
2 FilmOn’s seven-count first amended complaint asserted
causes of action for (1) trade libel; (2) tortious interference with
contract; (3) tortious interference with prospective economic
advantage; (4) unfair competition; (5) false advertising;
(6) slander; and (7) negligence. The causes of action for
negligence and slander were asserted exclusively against AOL,
Inc., which is not a party to this appeal. All other causes of
action were asserted against DoubleVerify or all defendants.
4
With respect to each of the complaint’s five causes of action
against DoubleVerify, FilmOn alleged “the false statements made
by [DoubleVerify] in [its reports] have caused . . . ad partners and
potential ad partners of FilmOn to decline to advertise through
their websites,” resulting in lost profits and other consequential
damages.
3. The Anti-SLAPP Motion
DoubleVerify responded with a special motion to strike the
subject causes of action pursuant to the anti-SLAPP statute.
With respect to the first prong of the anti-SLAPP analysis—
whether the challenged causes of action arose out of protected
conduct—DoubleVerify argued its reports concerned matters of
public interest insofar as the prevalence of adult content and
copyright infringing material on the Internet had received
attention from both the public and government regulatory
agencies. To support the contention, DoubleVerify submitted
several press releases and reports concerning the Family
Entertainment Protection Act and efforts by the Federal Trade
Commission to address the marketing of violent entertainment to
children.3 With regard to copyright infringement, DoubleVerify
submitted press reports concerning numerous lawsuits filed by
media production companies against FilmOn. DoubleVerify’s
3 The Family Entertainment Protection Act was proposed
federal legislation to prohibit the sale of mature and adults-only
video games to minors. The bill did not become law. Similar bills
were passed in states such as California, prompted in part by
public debate over sexually explicit content in several popular
video games. These laws were ultimately ruled unconstitutional.
(See Byrd, It’s All Fun and Games Until Someone Gets Hurt: The
Effectiveness of Proposed Video-Game Legislation on Reducing
Violence in Children (2007) 44 Hous. L. Rev. 401, 405-410 &
fn. 63.)
5
evidence also included the complaints filed and injunctions
entered in a number of federal district courts against FilmOn for
copyright infringement. With respect to the second prong—
whether FilmOn could establish a probability of prevailing on its
claims—DoubleVerify argued a “quick examination of FilmOn’s
website[s]” proved DoubleVerify’s “classifications [were] entirely
accurate.”4
In opposing the motion, FilmOn argued the alleged
misconduct did not concern a matter of public interest because
DoubleVerify distributed its confidential reports to paying
subscribers only. FilmOn also argued the “act of classifying or
certifying certain products or services” was not conduct in
furtherance of DoubleVerify’s right of free speech. As for the
merits of its claims, FilmOn maintained the district court
injunctions were insufficient to establish copyright infringement
because the law concerning the relevant technology was
unsettled. It also argued DoubleVerify’s “Adult Content”
classification was unreasonably misleading.
4. The Trial Court Order
The trial court granted the motion to strike. The court
found the public had a demonstrable interest in knowing what
content is available on the Internet, especially with respect to
adult content and the illegal distribution of copyrighted material.
The court analogized DoubleVerify’s conduct to more publicly
visible media advisory efforts, observing it was “not any different,
4 In connection with the second prong, DoubleVerify
submitted screen captures of the “categories of adult content
listed in the Video on Demand (‘VOD’) section of Filmon.com’s
‘Hotties’ content grouping.” DoubleVerify also relied upon the
district court orders and injunctions entered against FilmOn in a
handful of copyright infringement cases.
6
really, than the Motion Picture Association putting ratings on
movies.” Further, in view of the “massive amount of attention”
paid to FilmOn’s business in the area of copyright infringement,
the court concluded DoubleVerify’s reports clearly concerned a
matter of interest to the public. As for the merits of the
challenged causes of action, the court found FilmOn failed to
establish a probability of success because the undisputed
evidence showed DoubleVerify’s statements were essentially true
and DoubleVerify did not make the statements with the intention
to harm FilmOn’s business.
CONTENTIONS
FilmOn contends the challenged causes of action did not
arise out of conduct in furtherance of DoubleVerify’s
constitutional right of free speech. Specifically, FilmOn argues
the statements contained in DoubleVerify’s reports did not
concern “a public issue” or “an issue of public interest,” as
required by section 425.16, subdivisions (b)(1) and (e)(4), because
(1) the reports contained only “[b]asic classification and
certification decisions” with “little to no analysis or opinion”; and
(2) the reports were made “entirely in private, to individual
companies that subscribe to [DoubleVerify’s] services.”
For the reasons that follow, we conclude the statements
contained in DoubleVerify’s reports, which formed the basis for
FilmOn’s causes of action, did concern issues of public interest,
and the trial court properly found the threshold requirement for
anti-SLAPP protection was met.
7
DISCUSSION
1. Anti-SLAPP Procedure and Standard of Review
The anti-SLAPP statute, section 425.16, provides a
procedure for expeditiously resolving “nonmeritorious litigation
meant to chill the valid exercise of the constitutional rights of
freedom of speech and petition in connection with a public issue.”
(Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th
226, 235 (Sipple).) “When served with a SLAPP suit, the
defendant may immediately move to strike the complaint under
section 425.16. To determine whether this motion should be
granted, the trial court must engage in a two-step process.”
(Hansen v. Department of Corrections & Rehabilitation (2008)
171 0Cal.App.4th 1537, 1543 (Hansen); Equilon, supra,
29 Cal.4th at p. 67.)
The first prong of the anti-SLAPP analysis requires the
court to decide “whether the defendant has made a threshold
showing that the challenged cause of action is one arising from
protected activity.” (Equilon, supra, 29 Cal.4th at p. 67; § 425.16,
subd. (b)(1).) The defendant makes this showing by
demonstrating the acts of which the plaintiff complains were
taken “in furtherance of the [defendant’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)(1); Equilon, at p. 67.) “The anti-SLAPP statute’s
definitional focus is not the form of the plaintiff’s cause of action
but, rather, the defendant’s activity that gives rise to his or her
asserted liability—and whether that activity constitutes
protected speech or petitioning.” (Navellier v. Sletten (2002)
29 Cal.4th 82, 92 (Navellier).) “[T]he critical point is whether the
plaintiff’s cause of action itself was based on an act in
furtherance of the defendant’s right of petition or free speech.”
(City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)
8
If the court determines the defendant has made the
threshold showing, “it must then determine whether the plaintiff
has demonstrated a probability of prevailing on the claim.”
(Navellier, supra, 29 Cal.4th at p. 88; § 425.16, subd. (b)(1).)
Here, however, we are concerned with only the first prong of the
anti-SLAPP analysis, because FilmOn does not challenge the
trial court’s finding concerning FilmOn’s probability of prevailing
on its claims.
We review both prongs of the anti-SLAPP analysis de novo.
(Hansen, supra, 171 Cal.App.4th at p. 1544.) “Only a cause of
action that satisfies both prongs of the anti-SLAPP statute—i.e.,
that arises from protected speech or petitioning and lacks even
minimal merit—is a SLAPP, subject to being stricken under the
statute.” (Navellier, supra, 29 Cal.4th at p. 89.)
2. Issue of Public Interest Under the Anti-SLAPP
Statute
The trial court found that each cause of action asserted
against DoubleVerify was based on the allegation that a “recently
published [DoubleVerify] impression quality report incorrectly
described and misclassified [FilmOn] and its related websites in
the ‘Copyright Infringement-File Sharing’ and ‘Adult Content’
categories,” which caused some of FilmOn’s “advertising partners
to pull advertising from FilmOn’s websites.” In its motion,
DoubleVerify argued this alleged activity qualified for anti-
SLAPP protection under section 425.16, subdivision (e)(4), which
safeguards 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), italics added.) The trial court
agreed, concluding DoubleVerify’s conduct concerned issues of
public interest—namely, the regulation of Internet content, the
9
presence of adult content on websites accessible to children, and
intellectual property theft.
Section 425.16 does not define “public interest” or “public
issue.” “Those terms are inherently amorphous and thus do not
lend themselves to a precise, all-encompassing definition.” (Cross
v. Cooper (2011) 197 Cal.App.4th 357, 371 (Cross); see Rivero v.
American Federation of State, County, and Municipal Employees,
AFL–CIO (2003) 105 Cal.App.4th 913, 929 (Rivero); see also
Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 (Weinberg)
[“it is doubtful an all-encompassing definition could be
provided”].) Indeed, some courts, paraphrasing Justice Stewart’s
famous quip, have suggested that “ ‘ “no standards are necessary
because [courts and attorneys] will, or should, know a public
concern when they see it.” ’ ” (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1122, fn. 9 (Briggs); D.C. v.
R.R. (2010) 182 Cal.App.4th 1190, 1214-1215; Du Charme v.
International Brotherhood of Electrical Workers (2003)
110 Cal.App.4th 107, 117 (Du Charme); see Jacobellis v. Ohio
(1964) 378 U.S. 184, 197 (conc. opn. of Stewart, J.).)
Nevertheless, courts have expounded on principles that
should guide the assessment of whether a statement concerns a
matter of public interest. In Nygård, Inc. v. Uusi–Kerttula (2008)
159 Cal.App.4th 1027 (Nygård), the court observed that while
section 425.16 does not define “ ‘public interest,’ ” it does mandate
that its provisions “ ‘be construed broadly’ to safeguard ‘the valid
exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances.’ ” (Id. at p. 1039, quoting
§ 425.16, subd. (a).) The Nygård court explained that “[t]he
directive to construe the statute broadly was added in 1997, when
the Legislature amended the anti-SLAPP statute ‘to address
recent court cases that have too narrowly construed California’s
anti-SLAPP suit statute.’ ” (Nygård, at p. 1039; accord, Briggs,
10
supra, 19 Cal.4th at p. 1120.) Taken together, the Nygård court
reasoned that the legislative history of the amendment and the
cases that precipitated it “suggest that ‘an issue of public
interest’ . . . is any issue in which the public is interested.
In other words, the issue need not be ‘significant’ to be protected
by the anti-SLAPP statute—it is enough that it is one in which
the public takes an interest.” (Nygård, at p. 1042; Cross, supra,
197 Cal.App.4th at pp. 372-373.)
Further, because the statute mandates broad construction,
courts have determined, and the Legislature has endorsed the
view, that section 425.16 “governs even private communications,
so long as they concern a public issue.” (Wilbanks v. Wolk (2004)
121 Cal.App.4th 883, 897 (Wilbanks); Averill v. Superior Court
(1996) 42 Cal.App.4th 1170, 1175 [the Legislature did not intend
to exclude private conversations from protection under the
statute]; Terry v. Davis Community Church (2005)
131 Cal.App.4th 1534, 1546 (Terry) [holding, § 425.16, subd. (e)(4)
“applies to private communications concerning issues of public
interest”].)
In Rivero, the court identified three non-exclusive and
sometimes overlapping categories of statements that have been
found to encompass an issue of public interest under the anti-
SLAPP statute. (Rivero, supra, 105 Cal.App.4th at pp. 919-924;
Cross, supra, 197 Cal.App.4th at p. 373.) The first category
comprises cases where the statement or activity precipitating the
underlying cause of action was “a person or entity in the public
eye.” (Rivero, at p. 924; see, e.g., Sipple, supra, 71 Cal.App.4th at
p. 239 [national figure]; Church of Scientology v. Wollersheim
(1996) 42 Cal.App.4th 628, 651 (Church of Scientology) [church
subject to intense public scrutiny]; Seelig v. Infinity Broadcasting
Corp. (2002) 97 Cal.App.4th 798, 807-808 [a television show of
“significant interest to the public and the media”].) The second
11
category comprises cases where the statement or activity
involved “conduct that could directly affect a large number of
people beyond the direct participants.” (Rivero, at p. 924; see,
e.g., Damon v. Ocean Hills Journalism Club (2000)
85 Cal.App.4th 468, 479 [home owners association’s governance
of 3,000 residents]; Ludwig v. Superior Court (1995)
37 Cal.App.4th 8, 15 [environmental effects of mall development];
Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420
[potential safety hazards affecting residents of large
condominium complex].) And the third category comprises cases
where the statement or activity involved “a topic of widespread,
public interest.” (Rivero, at p. 924; see, e.g., M. G. v. Time
Warner, Inc. (2001) 89 Cal.App.4th 623, 629 [molestation of child
athletes by coaches]; Annette F. v. Sharon S. (2004)
119 Cal.App.4th 1146, 1162 [second-parent adoptions,
particularly in the gay and lesbian community]; Terry, supra,
131 Cal.App.4th at p. 1549 [inappropriate relationships between
adults and minors].) “Courts have adopted these categories as a
useful framework for analyzing whether a statement implicates
an issue of public interest and thus qualifies for anti-SLAPP
protection.” (Cross, supra, 197 Cal.App.4th at pp. 373-374
[listing cases].)
In Weinberg, the court, citing federal cases, enumerated the
following additional attributes of an issue that would make it one
of public, rather than merely private, interest. (Weinberg, supra,
110 Cal.App.4th at pp. 1132-1133; Cross, supra, 197 Cal.App.4th
at p. 374.) “First, ‘public interest’ does not equate with mere
curiosity. [Citations.] Second, a matter of public interest should
be something of concern to a substantial number of people.
[Citation.] Thus, a matter of concern to the speaker and a
relatively small, specific audience is not a matter of public
interest. [Citations.] Third, there should be some degree of
12
closeness between the challenged statements and the asserted
public interest [citation]; the assertion of a broad and amorphous
public interest is not sufficient [citation]. Fourth, the focus of the
speaker’s conduct should be the public interest rather than a
mere effort ‘to gather ammunition for another round of [private]
controversy . . . .’ [Citation.] Finally, . . . [a] person cannot turn
otherwise private information into a matter of public interest
simply by communicating it to a large number of people.”
(Weinberg, at pp. 1132-1133.)
With these principles in place, we turn to FilmOn’s specific
contentions concerning DoubleVerify’s statements, and whether
those statements concerned a public issue or an issue of public
interest under the anti-SLAPP statute.
3. DoubleVerify’s Statement that FilmOn Hosted Adult
Content and Copyright Infringing Material on Its
Website Concerned Issues of Public Interest
FilmOn contends DoubleVerify’s reports designating
certain FilmOn Websites in the “Copyright Infringement-File
Sharing” and “Adult Content” categories did not concern an issue
of public interest. In that regard, FilmOn asserts “[b]asic
classification and certification decisions that contain little to no
analysis or opinion are not constitutionally protected activity
within the ambit of the anti-SLAPP statute.” To support this
charge, FilmOn relies primarily upon All One God Faith, Inc. v.
Organic & Sustainable Industry Standards, Inc. (2010) 183
Cal.App.4th 1186 (OASIS).
In OASIS, a commercial trade association sought to develop
an “organic” certification for use by its members with their
personal care products. (OASIS, supra, 183 Cal.App.4th at
p. 1193.) A nonmember competitor sued, arguing the certification
was contrary to federal standards for the term “organic,” and
thus labeling the members’ products with the association’s
13
“ ‘OASIS Organic’ ” seal would constitute deceptive advertising
and an unfair business practice. (Id. at pp. 1193-1194, 1195.)
The trade association filed an anti-SLAPP motion, which the trial
court denied on the ground that the association failed to meet its
threshold burden of demonstrating the challenged conduct
concerned a public issue under the anti-SLAPP statute. (Id. at
p. 1197.) The trade association appealed, and the appellate court
affirmed.
The OASIS court began by addressing what activity gave
rise to the plaintiff’s claims. (OASIS, supra, 183 Cal.App.4th at
p. 1202.) The court rejected the association’s assertion that it
was “sued for its ‘opinion as to what makes a personal care
product “organic” ’ or ‘the articulation and dissemination of the
[“OASIS Organic”] standard.’ ” (Ibid.) Rather, the court
determined the association was sued for “authoriz[ing] its
members . . . to use the ‘OASIS Organic’ seal on their products in
the marketplace.” (Ibid.) This distinction proved critical to the
court’s resolution of whether the challenged conduct concerned an
issue of public interest. While the OASIS court acknowledged
the association’s “articulation and dissemination of a standard
regarding what makes a personal care product ‘organic’ may
constitute an exercise of its right of free speech on a matter of
public concern,” the court rejected the association’s implicit
assertion that “certification of commercial products—the
activities that [the plaintiff] seeks to enjoin—are in furtherance
of that speech.” (Id. at p. 1203.) In reaching this conclusion, the
court observed that the protected conduct—the articulation of an
“organic” standard—would “necessarily be complete before [the
association] certifie[d] any member product.” (Id. at p. 1203.)
Thus, the court reasoned the challenged conduct—authorizing
members to use its “ ‘OASIS Organic’ seal”—was unnecessary to
the act of articulating the standard and, therefore, was not in
14
furtherance of the association’s exercise of free speech in
connection with a public issue. (Id. at p. 1204.)
OASIS does not support FilmOn’s contention. In OASIS,
the association’s act of placing its seal on a member product
communicated nothing about what standards should be used to
judge whether a personal care product is organic. (OASIS, supra,
183 Cal.App.4th at p. 1204.) In this case, FilmOn’s business tort
and trade libel claims are based entirely upon the message
communicated by DoubleVerify’s “tags.” Indeed, it is only
because advertisers understand the message within
DoubleVerify’s tags that FilmOn can claim the tags caused
“advertising partners to pull advertising from FilmOn’s
websites.” And, it is only because advertisers understand that
the public is interested in whether adult content or copyright
infringing material appears on a website that these companies
would modify their advertising strategies based on
DoubleVerify’s tags. Unlike the unfair business practice claims
in OASIS, FilmOn’s allegations are directly based on the content
of DoubleVerify’s communications. The trial court correctly
found the claims were based upon conduct in furtherance of
DoubleVerify’s right of free speech.
We also agree with the court’s finding that the conduct
concerned issues of interest to the public. Apart from the
advertisers’ apparent view of whether the public has an interest
in these issues, DoubleVerify’s evidence demonstrated that 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. Among the publications that
reported specifically about FilmOn’s legal entanglements were
readily recognizable press outlets such as Fortune, Business
Insider, and Hollywood Reporter. Matters receiving extensive
15
media coverage through widely distributed news or
entertainment outlets are, by definition, matters of which the
public has an interest. (See, e.g., Annette F. v. Sharon S., supra,
119 Cal.App.4th at p. 1162 [press coverage of court decision
concerning second-parent adoption by lesbian couple was a
matter of public interest]; Church of Scientology, supra,
42 Cal.App.4th at p. 651 [“media coverage” established “Church
[of Scientology] is a matter of public interest”].) Likewise, the
public debate over legislation to curb children’s exposure to adult
and sexually explicit media content demonstrates DoubleVerify’s
reports identifying such content on FilmOn’s websites concerned
an issue of public interest. (See, e.g., fn. 3, ante.)
Common sense and experience also support the trial court’s
conclusion that these reports addressed matters of interest to the
public. As noted, some courts have observed that there is no need
to expressly define “public interest” under the anti-SLAPP
statute, because courts applying their common sense and
experience “ ‘ “will, or should, know a public concern when they
see it.” ’ ” (Briggs, supra, 19 Cal.4th at p. 1122, fn. 9.) The trial
court did so here. As the court pointed out, 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. Similarly, the court reasonably recognized
that federal district courts have entered injunctions against
FilmOn’s business because the public has an interest in the
prevention of copyright infringement.
The trial court did not err in concluding FilmOn sued
DoubleVerify for engaging in conduct in furtherance its right of
free speech in connection with an issue of public interest.
16
4. DoubleVerify’s Confidential Reports Are Entitled to
Anti-SLAPP Protection
Alternatively, FilmOn argues DoubleVerify’s reports could
not have concerned an issue of public interest because they “were
made entirely in private, to individual companies that subscribed
to its services.” FilmOn acknowledges that “preventing copyright
infringement and children’s access to adult content are issues of
public concern,” but argues DoubleVerify’s conduct does not
embrace these issues because its “reports are private statements
made in a commercial context.” We disagree.
FilmOn’s argument rests on the flawed premise that to
qualify as speech in connection with an issue of public interest,
“the statement must itself contribute to the public debate.”
Though the public interest requirement “means that in many
cases the statement or conduct will be a part of a public debate”
(Wilbanks, supra, 121 Cal.App.4th at p. 898, italics added), an
ongoing public debate is not a sine qua non for protection under
the anti-SLAPP statute where the statement concerns an issue of
widespread public interest. (See Cross, supra, 197 Cal.App.4th at
p. 381, fn. 15.) To judicially impose such a requirement would
impermissibly “narrow[ ] the meaning of ‘public interest’ despite
the Legislature’s mandate to interpret the anti-SLAPP statute
broadly.” (Ibid; see § 425.16, subd. (a); Nygård, supra, 159
Cal.App.4th at p. 1039.)
In Cross, the court rejected the proposition, first articulated
in Wilbanks, that “even statements directly concerning issues of
widespread public interest—i.e., the Rivero third category—do
not qualify for protection unless there is some existing ongoing
controversy, dispute, debate, or discussion about those issues and
the statements contribute to that debate.” (Cross, supra,
197 Cal.App.4th at p. 381, fn. 15, citing Wilbanks, supra,
121 Cal.App.4th at p. 898.) The Wilbanks court ruled that “it is
17
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, at p. 898.) But, as
the Cross court explained, “the Wilbanks court provided no
analysis” for this ruling, and “simply cited, without further
discussion,” three cases that neither involved statements
concerning issues of widespread public interest, nor suggested
that this category should be further restricted. (Cross, at p. 381,
fn. 15 [discussing, Du Charme, Consumer Justice Center v.
Trimedica International, Inc. (2003) 107 Cal.App.4th 595
(Consumer Justice Center), and Rivero.)5
5 In Du Charme, a union local posted a notice on its website
informing members that a former business manager had
previously been removed for mismanagement. (Du Charme,
supra, 110 Cal.App.4th at pp. 113–114.) The Du Charme court
ruled that “to satisfy the public issue/issue of public interest
requirement . . . , in cases where the issue is not of interest to the
public at large, but rather to a limited, but definable portion of
the public (a private group, organization, or community), the
constitutionally protected activity must, at a minimum, occur in
the context of an ongoing controversy, dispute or discussion, such
that it warrants protection by a statute that embodies the public
policy of encouraging participation in matters of public
significance.” (Id. at p. 119, first italics added.) In Consumer
Justice Center, the subject false advertising claim did not concern
the general topic of herbal supplement efficacy, but rather
alleged that the defendant “misrepresented the specific
properties and benefits” of its particular herbal supplement.
(Consumer Justice Center, supra, 107 Cal.App.4th at p. 601.)
And, in Rivero, the subject defamation claim was based upon a
union’s statements about the supervision of eight custodians, not
the issue of unlawful workplace activity generally. (Rivero,
supra, 105 Cal.App.4th at p. 924.)
18
Moreover, FilmOn’s insistence that statements concerning
issues of widespread interest must also contribute to a public
debate is contrary to the legislative mandate to broadly construe
the anti-SLAPP statute in favor of protection. As the Cross court
observed, the Wilbanks rule is “akin to the rule promulgated in
[Zhao v. Wong] that narrowed ‘public issue’ to statements
‘occupying “the highest rung of the hierarchy [sic] of First
Amendment values,” that is, to speech pertaining to the exercise
of democratic self-government.’ ” (Cross, supra, 197 Cal.App.4th
at pp. 381-382, fn. 15; Zhao v. Wong (1996) 48 Cal.App.4th 1114,
1129, disapproved in Briggs, supra, 19 Cal.4th at p. 1123, fn. 10.)
This narrow interpretation, the Cross court explained, was
rejected by the Legislature when it “amended the anti-SLAPP
statute to require that it be broadly construed in response to
Zhao.” (Cross, at pp. 381-382, fn. 15, citing Nygård, supra,
159 Cal.App.4th at p. 1039; see also Briggs, at p. 1120 [“The
Assembly Judiciary Committee’s analysis of the amendatory
legislation confirms the amendment was intended specifically to
overrule Zhao v. Wong”].) In view of the mandate for broad
construction, we agree with the Cross court that, where a
statement concerns an issue of widespread public interest, it need
not also contribute in some manner to a public debate. (See
Cross, at pp. 381-382, fn. 15; see also Tamkin v. CBS
Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143 [where public
was “demonstrably interested in the creation and broadcasting of
[a television] episode,” act of using plaintiffs’ names in early draft
of episode script qualified for anti-SLAPP protection, even in
absence of a public debate].)
In any event, FilmOn’s implicit contention that the
challenged activity must occur in public view, and thus advance a
public debate, cannot be squared with the rule that the anti-
SLAPP statute “applies to private communications concerning
19
issues of public interest.” (Terry, supra, 131 Cal.App.4th at
p. 1546.) Whether a statement concerns an issue of public
interest depends on the content of the statement, not the
statement’s speaker or audience. Thus, in Terry, the court held
statements alleging the plaintiffs had an inappropriate sexual
relationship with a minor church member were entitled to anti-
SLAPP protection, notwithstanding that the statements were
made in an internal investigation report disseminated in closed
meetings with the parents of youth group members. (Id., at
pp. 1543, 1545-1547.) Likewise, in Hecimovich v. Encinal School
Parent Teacher Organization (2012) 203 Cal.App.4th 450, the
court held that statements made privately by parents to the
coordinator of a youth basketball program about a volunteer
coach were protected by the anti-SLAPP statute because the
statements concerned issues of public interest, such as “safety in
youth sports” and “problem coaches/problem parents in youth
sports.” (Id. at pp. 465, 468.)
So too here; it is irrelevant that DoubleVerify made its
reports confidentially to its subscribers, because the contents of
those reports concerned issues of widespread interest to the
public. Thus, for example, if an “R” rating for adult content is a
matter of “public interest” when communicated by 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. Neither
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. The trial court correctly
found that DoubleVerify made a threshold showing that the
challenged causes of action arose from protected activity.
20
DISPOSITION
The order is affirmed. DoubleVerify is entitled to its costs.
JOHNSON (MICHAEL), J.*
We concur:
EDMON, P. J.
ALDRICH, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
21
Filed 7/25/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
FILMON.COM, B264074
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC561987)
v.
ORDER CERTIFYING
DOUBLEVERIFY, INC. OPINION FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
Defendant and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on June 29, 2017, was
not certified for publication in the Official Reports. For good cause, it now
appears that the opinion should be published in the Official Reports.
[There is no change in the judgment.]
__________________________________________________________________
JOHNSON (MICHAEL), J.* EDMON, P. J. ALDRICH, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.