• by Wendy Davis  @wendyndavis, January 16, 2018

Streaming video distributor FilmOn is asking California's highest court to revive a lawsuit alleging that DoubleVerify provided false reports to advertisers.

DoubleVerify, an online monitoring company, "provided at least one of FilmOn's former clients with a confidential report that falsely accused FilmOn of displaying 'adult content' and unauthorized copyrighted work on its websites," FilmOn writes in papers submitted Tuesday to the California Supreme Court. "Those false and misleading statements caused FilmOn to lose advertising business."

DoubleVerify CEO Wayne Gattinella previously said the company stood by reports concluding that FilmOn was a copyright infringement site.

The battle between the companies dates to 2014, when FilmOn initially sued DoubleVerify for libel. DoubleVerify -- which sells reports about publishers to agencies and advertisers -- successfully fought the suit by arguing that its reports were covered by California's anti-SLAPP (strategic litigation against public participation) law, which protects people's right to discuss matters of public interest. A trial judge dismissed the lawsuit in 2015; last year, an appellate court upheld the dismissal.

FilmOn is now asking California's highest court to rule that the state anti-SLAPP law doesn't apply to DoubleVerify's "confidential commercial reports."

FilmOn argues that DoubleVerify's reports "do not contribute to any public debate" because they are only sent to private customers. (FilmOn says it learned from a former client about DoubleVerify's reports in late 2013.)

"This Court should hold that the identity of the speaker, the identity of the audience, and the intended purpose of the speech are all important considerations in determining whether speech is protected by the anti-SLAPP statute," FilmOn argues in its new papers.

One reason why the lower courts sided with DoubleVerify was that questions about copyright infringement and adult content online have garnered a great deal of attention. When FilmOn initially sued, the company was fighting several copyright lawsuits by TV broadcasters. Those cases, which were settled last year, centered on FilmOn's prior streaming platform, which reportedly used antennas to capture and transmit programs. The Supreme Court said in June 2014 that a similar system, operated by the defunct Aereo, infringed copyright.