• by Wendy Davis  @wendyndavis, November 20, 2017

California's highest court could soon decide whether the monitoring company DoubleVerify must face a lawsuit for allegedly defaming streaming video company FilmOn by classifying it as a copyright infringer and provider of adult content.

Late last week, the California Supreme Court granted FilmOn's request to appeal lower court rulings dismissing its case. The battle dates to 2014, when FilmOn alleged that its relationships with advertisers were harmed by DoubleVerify's "false and disparaging" reports regarding copyright infringement and adult material. FilmOn's claims against DoubleVerify included trade libel, interference with contracts, unfair competition and false advertising.

DoubleVerify offers reports that aim to advise agencies and advertisers about the type of material residing on publishers' sites. DoubleVerify declined to comment for this report, but CEO Wayne Gattinella previously said the company stood by reports concluding that FilmOn was a "copyright infringement site."

DoubleVerify successfully argued to a trial judge and appellate court that the company's reports were covered by California's anti-SLAPP (strategic litigation against public participation) law, which seeks to protect people's right to discuss matters of public interest.

In September, FilmOn asked the California Supreme Court to take up the case. FilmOn argued that DoubleVerify is not entitled to the protections of a law protecting free speech about matters of public interest, because the company's reports are both confidential and commercial.

"Without clear guidance from this Court, the anti-SLAPP statute will continue to be abused and pushed far beyond what the legislature intended," FilmOn argued in its petition to the California Supreme Court.

The company adds that the lower court rulings in favor of DoubleVerify create "an enormous legal barrier to holding companies accountable for their false and misleading statements, even when that speech takes place entirely in secret and serves only private commercial interests."

One reason that the lower court sided with DoubleVerify was that questions about copyright infringement and adult content online have garnered a great deal of attention. FilmOn faced several suits in the last few years for allegedly infringing copyright by streaming programs without licenses. In May of this year, FilmOn settled the lawsuits on confidential terms.