By THOMAS R. BURKE, KELLI L. SAGER, ROCHELLE L. WILCOX, and NICOLETTE VAIRO
The California Supreme Court unanimously decided earlier in the year that in ruling on an anti-SLAPP motion, the context of a defendant’s statement—such as the commercial nature of the statement, the identity of the speaker, the identity of the audience, and the statement’s intended purpose—”is relevant though not dispositive, in analyzing whether the statement was made ‘in furtherance of’ free speech ‘in connection with a public issue'” within the meaning of California Code of Civil Procedure § 425.16, subdivision (e)(4). Filmon.com, Inc. v. DoubleVerify, Inc., 7 Cal. 5th 133 (2019). In evaluating the context of the particular case before it, the Court concluded that a challenged statement is made “in connection with a public issue” when it contributes to, or furthers, some public conversation on the issue.
DoubleVerify Inc. monitors information about the websites on which its clients may potentially advertise, including the location of the website’s viewers, where advertisements are displayed, other advertisers on the website, and a description of the website’s content. For a fee, DoubleVerify provides its clients with a report on this information, and the client agrees to keep the report confidential. The report includes “tags” that label websites for containing content such as “Adult Content,” including “[m]ature topics which are inappropriate viewing for children including explicit language, content, sounds, and themes,” and “Copyright Infringement” for “[s]ites, presently or historically, associated with access to or distribution of copyrighted material without appropriate controls, licensing, or permission.” Some of the websites that DoubleVerify classified as “Adult Content” or “Copyright Infringement” in its confidential reports belong to FilmOn.com Inc. FilmOn sued DoubleVerify for trade libel, tortious interference with contract, tortious interference with prospective economic advantage, and unfair competition, asserting that its websites do not contain adult content or engage in copyright infringement.
In response, DoubleVerify filed an anti-SLAPP motion, arguing that its confidential reports were constitutionally protected expression because they concerned issues of public interest. The trial court granted the motion, and the Court of Appeal affirmed, explaining that “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,” and analogizing the reports to movie ratings by the Motion Picture Association of America.
The California Supreme Court unanimously reversed the decision. It held that courts must consider the content and context of a defendant’s statement in determining whether that statement furthers the exercise of constitutional speech rights in connection with a matter of public interest, and therefore should be protected under section 425.16, subdivision (e)(4).
Courts Must Consider Context in Determining Whether a Statement Is Protected Under Section 425.16, Subdivision (e)(4)
As a threshold matter, the Court rejected DoubleVerify’s argument that a statement’s commercial context is irrelevant, except when determining whether the statement falls within Code of Civil Procedure §425.17, subdivision (c), which exempts comparative advertising from the anti-SLAPP statute. DoubleVerify argued that considering a statement’s commercial context under Section 425.16(e)(4) would “render [s]ection 425.17(c) redundant and mere surplusage[.]” The Supreme Court disagreed, noting that a court “should not lightly assume that context may be considered only under one subdivision merely because that subdivision explicitly mentions certain contextual factors.”
Instead, the Court concluded 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. In other words, context matters under [Section 425.16, subdivision (e)(4)], and commercial context is no exception.” Consequently, the Court found that in evaluating the application 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.”
In Evaluating the Challenged Statement’s Context, the Court Is Determining Whether the Statement is Made “in Connection With” a Public Issue
The Court explained that analysis under Section 425.16, subdivision (e)(4), is a two-part process: first, the court looks to the content of the speech to see what public issue is implicated; second, the court asks “what functional relationship exists between the speech and the public conversation” in regard to that particular matter of public interest. It is at the second stage, the court noted, “that context proves useful.”
According to the court, although California courts have “ably distilled the characteristics of ‘a public issue or an issue of public interest[,]'” 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.”
The court held that a statement is made “in connection with a public issue,” as required under Section 425.16, subdivision (e)(4), “when it contributes to—that is, ‘participat[es]’ in or furthers—some public conversation on the issue.” This inquiry, the Court found, “is one a court can hardly undertake without incorporating considerations of context—including audience, speaker, and purpose.”
The court noted that it can liberally extend anti-SLAPP protection “where doing so would ‘encourage continued participation in matters of public significance,’ but withhold that protection otherwise.” A careful observation into the “wedding of content and context,” the Court reasoned, enables courts to discern whether a statement is made in connection with a public issue. “[T]his union of content and context” in this case led the Court to conclude that “DoubleVerify’s report [did] not qualify for protection under [Section 425.16, subdivision (e)(4)] of the anti-SLAPP statute” because its report was not in furtherance of free speech in connection with an issue of public interest.
Thomas R. Burke is a partner in Davis Wright Tremaine’s San Francisco office. Kelli L. Sager and Rochelle L. Wilcox are partners and Nicolette Vairo an associate in the firm’s Los Angeles office.