SAN FRANCISCO – Online TV streaming service FilmOn will get a chance to argue to the California Supreme Court that it has a legitimate defamation case for being labeled a copyright infringer and provider of adult content.
The state high court announced in an advisory Friday that it has granted review in FilmOn’s lawsuit against DoubleVerify, a company that provides information about websites to potential advertisers. FilmOn alleged that companies pulled ad dollars from FilmOn’s websites after DoubleVerify classified them as “Copyright Infringement-File Sharing” and “Adult Content.”
A Los Angeles appellate court earlier this year affirmed a ruling by a lower court judge dismissing the case under California’s anti-SLAPP statute, finding that DoubleVerify’s classifications were constitutionally protected free speech and concerned a matter of public interest. (SLAPP is an acronym for “strategic lawsuit against public participation.”)
The central question before the California Supreme Court is whether, in determining whether to dismiss a case under the anti-SLAPP statute, courts should take into account the “commercial nature” of the speech at issue—including the identity of the speaker and audience, and the intended purpose of the speech. The court officially granted review Nov. 15.
FilmOn, formerly known as Aereokiller, has been involved in copyright litigation around the country with TV networks over whether it is entitled to rebroadcast over-the-air content at discounted rates as a “cable system.” It has generally been on the losing end of those legal battles, and has been blocked from offering broadcaster content while the court proceedings are ongoing.
In its complaint against DoubleVerify, FilmOn cited the unsettled nature of the copyright law issues in challenging how its websites were categorized. FilmOn conceded that some of its programming could be characterized as “R- rated,” but alleged that “the vast majority of the programming available on FilmOn does not fit within any definition of adult content.”
Lincoln Bandlow, a partner at Fox Rothschild who represents DoubleVerify, said in an email that he and the company welcome the opportunity for the state high court to affirm the previous rulings that DoubleVerify’s speech “is speech about matters of significant public interest.”
FilmOn is represented by Ryan Baker of Baker Marquart. Baker said in an email that his client “is pleased the Supreme Court will consider this important precedent, which extends anti-SLAPP protections far beyond those intended by the California Legislature.” In its petition for review, FilmOn argued the lower courts had “dramatically expanded the scope” of the anti-SLAPP statute.
The case is FilmOn.com v. DoubleVerify, S244157.