FilmOn.com Inc. v. Doubleverify Inc., No. S244157 (Cal. May 6, 2019)
The California Supreme Court has granted review of a number of important cases dealing with Code of Civil Procedure § 425.16(e)(4)—the anti-SLAPP-statute’s “catchall” provision. This is a big one.
Under § 425.16 a claim can be subjected to protection by the anti-SLAPP regime if it arises from “any other 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.” This case addresses both the scope of a public issue/public interest as well as the nature of the “in connection with” requirement.
Defendant provides some kind of Internet rating web advertiser analytics product. Companies that advertise on the internet buy its services to figure out where to advertise online. In exchange for a fee, they get a report. Two of the analytics Defendant provides is a coding signifying whether or not a website has adult content or connection with streaming and potential copyright infringement.
Plantiff runs websites that got flagged for both of those things. It sued for trade libel. Defendant filed an anti-SLAPP motion, which the trial court granted. The Court of Appeal affirmed, in a decision that had to grapple with the question of whether Defendant’s statements were really addressed to an issue of public interest. The Supreme Court granted review.
In a 7-0 decision by Justice Cuellar, the Court makes some important, albeit subtle, points about the (e)(4) catchall provision.
First, in reading the provision, the Court notes that although (e)(1), (2), and (3) have contextual references to specific forums and proceedings that “help courts discern the type of conduct and speech to protect,” (e)(4) does not. But (e)(4)’s reference to “other conduct,” nonetheless suggests edjusdem generis. Viz., that the types of context that are made express in the other provisions are also relevant to the Legislature’s effort to “round out the statutory safeguards for constitutionally protected expression,” in enacting (e)(4).
Second, it follows that in deciding whether a statement is “in connection with” a public issue, “context matters.” That is, courts should not only look to the content of the statement or conduct, but also the relationship between the speaker, the speech and the audience.
Third, in asking whether speech or conduct is in connection with a public issue, a court should apply a two part test. It should first determine what public issue or issue of public interest the content of the speech implicates. And then it should decide what functional relationship exists between the speech and the public conversation about that issue. In is on this second point that context is particularly helpful to the analysis.
And Fourth, on the second element of the test, in order to have the requisite nexus to satisfy (e)(4), the defendant, through its speech or conduct, should “particpate[ ] in, or further[ ], the discourse that makes an in issue one of public interest.” Only speech or conduct that does so is sufficiently “in connection with” the issue to meet the test.
Applying this framework to the facts at hand, the very difficult question presented to the Court of Appeal becomes a lot simpler. Defendant’s speech is about individual websites, made to private subscribers who pay for the service, who subscribe to the service for the purpose of letting evaluating the effectiveness of their advertising on the Internet. So even if a high level of abstraction, pornography or copyright infringement on the Internet is a subject of interest to a substantial part of the public, in context, Defendant’s speech is not meaningfully contributing to or participating in that debate.
Reversed.
I must say, this is pretty brilliant.
As I explained in my post on the Court of Appeal’s decision, prior efforts to make the public interest analysis mean anything more that an “I know it when I see it” test have been largely unsuccessful. One of the big problems is that, generalized to a sufficient level of abstraction, pretty much anything can touch on a public issue. Justice Cuellar deals with the framing problem by imposing a consequence to framing the issue in a super broad or general matter.
That is, on one hand, whether this Plaintiff’s particular website has porn or infringing maternal on it is not an issue of importance to much of the public. On the other hand, at 30,000 feet, abstract issues about Internet pornography and copyright infringement are things the public cares about. So a defendant has every motivation to describe the “issue” to encompass some generalized concern about the Internet as a whole. But having done that, this new test requires a defendant to show some kind of participation or furtherance of that broader debate. Which provides an incentive to more narrowly circumscribe the issue.
It will be interesting to see how this new test shakes out in application. But in an unscientific review of the cases where I thought courts got the public issue question wrong, this test would appear to come out with the opposite result. And since in many of those cases, the Court has granted review and held pending the a decision in this case and the recently argued and soon to be decided Wilson v. CNN case, I guess we’ll see.
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