California Supreme Court building, San Francisco (Photo: Jason Doiy/ALM)

The California Supreme Court has revived a trade libel lawsuit brought by online TV streaming service FilmOn against a company that provides information about websites to potential advertisers, which labeled FilmOn a copyright infringer and adult content provider.

A Los Angeles appellate court in 2017 previously affirmed a ruling by a lower court judge dismissing FilmOn's case under California's anti-SLAPP statute, finding that confidential reports that DoubleVerify generated for advertisers labeling FimOn an infringer and provider of “adult content” were constitutionally protected free speech and concerned a matter of public interest.

But in a unanimous opinion written by Justice Mariano-Florentino Cuéllar, the state's high court held that DoubleVerify's reports were “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” of the state's anti-SLAPP law.

“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,'” Cuéllar wrote.

“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,” he wrote.

Reached by email Monday, FilmOn's lawyer Ryan Baker of Baker Marquart said the opinion “restores some reason and balance to the application of the anti-SLAPP statute.” Baker said that court's in the state previously had over-emphasized the state Legislature's directive to interpret the anti-SLAPP law “broadly,” leaving well-funded litigants such as DoubelVerity ”to insulate themselves from liability by connecting the speech or conduct at issue to a matter of public interest in some attenuated way.”

“Today, the Court clarifies that the 'functional relationship' between the speech or conduct at issue and issues of public interest must be considered to determine whether that statement sufficiently encourages participation in matters of public significance to warrant anti-SLAPP protection,” Baker said. “This opinion provides a reasonable framework litigants must now consider before seeking anti-SLAPP protection,” he added.

DoubleVerify's lawyer Lincoln Bandlow, who has left Fox Rothschild to set up his own firm while the case has been pending, was in a deposition Monday and unavailable for comment. Rochelle Wilcox of Davis Wright Tremaine represented a group of amici, including the California News Publishers Association of which The Recorder is a member. Wilcox was out of the office Monday and didn't immediately respond to messages seeking comment.

Read the opinion: