• by Wendy Davis  @wendyndavis, May 6, 2019

Siding against online monitoring company DoubleVerify, California's highest court has revived streaming video distributor FilmOn's claims that DoubleVerify provided false reports to advertisers.

The California Supreme Court said in a decision issued Monday that DoubleVerify's reports aren't covered by the state's anti-SLAPP (strategic litigation against public participation) law, which protects people or companies who are sued for making statements about matters of public interest.

“DoubleVerify’s reports -- generated for profit, exchanged confidentially, without being part of any attempt to participate in a larger public discussion -- do not qualify for anti-SLAPP protection,” Justice Mariano-Florentino Cuéllar wrote for a unanimous court. “This is not because confidential statements made to serve business interests are categorically excluded from anti-SLAPP protection. It is instead because DoubleVerify’s reports are too tenuously tethered to the issues of public interest they implicate, and too remotely connected to the public conversation about those issues, to merit protection.”

The battle between the two companies dates to 2014, when FilmOn sued DoubleVerify for libel and other claims. FilmOn alleged it was wrongly classified by DoubleVerify as a copyright infringer and adult content distributor. The video company argued that the reports harmed its relationships with advertisers.

DoubleVerify offers reports that aim to advise agencies and advertisers about the type of material residing on publishers' sites. The company argued that the lawsuit should be dismissed at an early stage under the anti-SLAPP law.

DoubleVerify argued that its reports dealt with matters of public interest, especially given that FilmOn had been sued for copyright infringement. When the dispute between the companies erupted in 2014, FilmOn was fighting several copyright lawsuits by TV broadcasters.

Those cases, which were eventually settled, 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.

FilmOn countered that DoubleVerify's reports were commercial and confidential, and therefore weren't covered by California's law regarding lawsuits that stifle free speech.

A trial judge and appellate court sided with DoubleVerify. But the California Supreme Court rejected the company's position and ruled that the “broader context” of the report showed it didn't further “public conversation on an issue of public interest,” and therefore wasn't entitled to anti-SLAPP protection.

“DoubleVerify issues its reports not to the wider public ... but privately, to a coterie of paying clients. Those clients, in turn, use the information DoubleVerify provides for their business purposes alone. The information never entered the public sphere, and the parties never intended it to,” Cuéllar wrote.

The high-profile dispute drew the attention of outside groups including the Motion Picture Association of America, Hearst Corporation, California News Publishers Association and First Amendment Coalition -- all of which sided with DoubleVerify.

Those groups wrote in a friend-of-the-court brief that DoubleVerify's reports were in the public interest because they helped businesses avoid placing ads on sites with pirated material.

Internet law expert Eric Goldman, a professor at Santa Clara University, says Monday's ruling could make it harder for companies facing lawsuits over their statements to secure speedy dismissals. The result could be increased costs for companies facing claims for speech that arguably relates to matters of public interest.