State high court mulls a challenge to anti-SLAPP law

Concerned with a slippery slope in anti-SLAPP law, several members of the state Supreme Court expressed interest Wednesday in better defining what terms like "public interest" and "public figure" mean in a legal context.

The discussion came as part of argument in an appeal by FilmOn.com, an internet media company that claims the statue had been repeatedly misapplied in a case against authentication service provider DoubleVerify Inc. FIlmOn.Com v. Double Verify Inc., S244157.

FilmOn sued for trade libel and slander, among other claims, arguing DoubleVerify, which provides information on digital media groups to potential advertisers, falsely disparaged FilmOn in reporting to advertisers it hosted stolen media and "adult content."

A trial court dismissed the lawsuit on anti-SLAPP grounds, and a 2nd District Court of Appeal panel upheld the decision, finding FilmOn's cause of action arose from protected activity.

Ryan G. Baker, of Baker Marquart, told the justices the lower courts were wrong because DoubleVerify's reports are primarily a commercial transaction, rather than an expression of free speech.

While anti-SLAPP was enacted to promote First Amendment rights, Baker said application of the statute has broadened so greatly that it's having the opposite effect and preventing wronged parties from pursuing righteous claims.

"What DoubleVerify has done has taken this law and built a legal moat around its business," Baker said.

Lincoln Bandlow, a partner at Fox Rothschild LLP and counsel for DoubleVerify, said there was no question the company's reports were protected speech with particular public interest, particularly given media reports and lawsuits filed against FilmOn for its allegedly flagrant copyright violations.

Though DoubleVerify's reports can only be seen by its roughly 1,200 subscribers, Bandlow said reporting on FilmOn's supposed violations was indisputably in the public's interest.

But several members of the court expressed some caution about the potential over-application of anti-SLAPP.

Given its application in this case, Justice Mariano-Florentino Cuéllar asked Bandlow whether he could imagine any business activity that wouldn't be protectable under anti-SLAPP law.

Bandlow said there were limits, offering as an example a company's private report on a private citizen's divorce. That wouldn't be protectable, he said, though a report on a public figure's divorce could be considered of public interest.

Chief Justice Tani Cantil-Sakauye said she felt the statute suffered from a lack of clearly defined thresholds. A person who puts a video on YouTube that gets a few thousand hits could arguably be considered a public figure, she said.

"This seems like a wholly self-contained, private, profitable transaction," Cantil-Sakauye said.

While he felt the statute's boundaries are fairly clearly defined, Bandlow said DoubleVerify's reporting was further justified by the fact that its claims about FilmOn's business model had already been reported.

And while Cuéllar didn't seem clearly opposed to the legal argument, he opined about the peculiarity of courts deferring to media reports when making rulings.

"If it's more about what entices the public right now, it's strange to think the scope of the anti-SLAPP statute would be driven by the vicissitudes of what the media covers at any one moment," Cuéllar said.