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.

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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.

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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.

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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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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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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

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FILMON.COM INC. v. DOUBLEVERIFY INC.

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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

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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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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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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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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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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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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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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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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

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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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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].)

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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

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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.

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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