Intellectual Property Law

New Matter FALL 2019, Volume 44, Number 3

Case Comments

Lowell Anderson

Stetina Brunda Garred & Brucker


The Defendant provides confidential advice to clients on the value of advertising on various websites, including rating websites on "adult content" and "copyright infringement." Unhappy with its ratings, Plaintiff website owner sued for trade libel, interference and unfair competition. The trial and appeal courts struck the claims under the catchall provision of California’s anti-SLAPP statute because of the public interest in adult content and illegal distribution of copyrighted materials. California’s catchall provision protects "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." Cal. Code Civ. P. § 425.16(e)(4). Commercial speech is not automatically excluded from protection, but "depends not only on the content of that speech but also the identity of the speaker, the intended audience, and the purpose of the statement." "What we hold is that the context of a defendant’s statement is relevant, though not dispositive, in analyzing whether the statement was made ‘in furtherance of’ free speech ‘in connection with’ a public issue. (§ 425.16, subd. (e)(4).) In an age of easy public access to previously private information through social media and other means, context allows us to assess the functional relationship between a statement and the issue of public interest on which it touches—deciding, in the process, whether it merits protection under a statute designed to ‘encourage continued participation in matters of public significance.’ (§ 425.16, subd. (a).)" "[T]he catchall provision demands ‘some degree of closeness’ between the challenged statements and the asserted public interest." "We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest." "But the inquiry of whether a statement contributes to the public debate is one a court can hardly undertake without incorporating considerations of context —including audience, speaker, and purpose." Here, the confidential information never entered the public sphere of discussion, and Defendant "did not issue its report in furtherance of free speech ‘in connection with’ an issue of public interest." The anti-SLAPP dismissal was reversed., Inc. v. Doubleverify, Inc., 7 Cal. 5th 133, 439 P.3d 1156, 246 Cal.Rptr.3d 591 (2019).

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