Filmon.com v. Doubleverify, Inc., No. B264074 (D2d3 Jul. 25, 2017)
Defendant here sells some kind of service where it sniffs out whether adbuys on the Internet are really effective. One part of this service is to uncover whether the sites on which its customers’ ads are displayed have adult content or are commonly used as channels for copyright infringement. Defendant rated Plaintiff’s site—which purports to be a free and legal content streaming site—as containing both of those things. Plaintiff sued Defendant for various libel-ish torts. Defendant filed an anti-SLAPP motion, which the trial court granted. Plaintiff appeals.
The only issue is whether the Defendant’s services and the statements made in the course of providing them “arise from protected activity.” The statements at issue are private statements Defendant made to its subscribers. So they don’t fit the normal kinds of stuff that forms protected activity—statements in or in connection with public proceedings and statements in public fora. See Code Civ. Proc. § 425.16(e)(1)–(3). Which just leaves the “other conduct in furtherance” catchall in § 425.16(e)(4).
Courts have, in fact, found that private communications can fall within (e)(4), as long as they are addressed to an a “public issue or an issue of public interest.” So that’s what this case comes down to: Do Defendant’s statements about the kinds of stuff that are on Plaintiff’s website rise to the level of a public issue?
Which is a tough question because, at the end of the day, there’s really no firm rule. The court summarizes a taxonomy of the kinds of cases that have found the standard to me met. First, there are the public figure-type cases where Defendant has made some kind of statement about someone in the public eye. Second, there are the kinds of cases that address conduct that could affect a significant community beyond the parties to the case. And third, there are cases addressed to a topic of widespread public interest.
The court further notes that other courts have articulated additional relevant considerations, such as: (1) the fact that public interest doesn’t equate with public curiosity; (2) that a public interest should concern a substantial number of people; (3) that there needs to be a close relationship between the statements and the asserted interest; (4) that the inquiry should focus on the actual public interest, as opposed to the speaker’s effort to gin up a controversy; and (5) that private information can’t be turned into a public interest by communicating it to a lot of people.
Tired yet?
Each of these points, in isolation, basically make sense. But given the depressing reality of modern public discourse, are these points really capable of articulation into some kind of meaningful standard? If there’s no objective and independent arbiter of “true” how can there be one of “interestedness.” While some swathe of the “public” cares about important public-intererested-y stuff, others are interested in trash, some fixate on conspiracy theories, some are so ideologically blinded to evidence that they believe in demonstrable untruths. Indeed, some seem to think that the whole idea of objective truth is elitist. Who are the judges to judge?
So at the end of the day, whether something is a public issue comes down to just a gestalt question for the decision maker—does this feel like an issue of public interest. The Court here comes close to admitting that when it supports its ruling with “common sense and experience,” noting that other cases have declined to define “public interest” because courts applying their common sense and experience “will, or should, know a public concern when they see it.”
And applying that test, whatever it is, the court finds that Defendant’s private reports regarding potentially objectionable web contest meet it. There’s a robust public debate regarding adult content and copyright infringement on the Internet. Owing that, Defendants’ reports touch on that interest, even though they are privately conveyed only to Defendants’ subscribers.
Affirmed.
No comments:
Post a Comment