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Stricter Interpretation Required: The Strategic Lawsuits Against Public Participation Statute Requires Analysis of Both Content and Context

On Behalf of | May 31, 2019 | Business Litigation

On May 6, 2019, the Supreme Court of California published an opinion drastically altering the way strategic lawsuits against public participation (“SLAPP”) statutes are interpreted. The anti-SLAPP statute allows for a “special motion to strike meritless claims early in litigation – but only if the claims arise from acts in furtherance of a person’s right of petition or free speech…in connection with a public issue.” (pg. 1) The case setting this in motion, Inc. v. Doubleverify Inc., deals with two for-profit companies who are disputing how one company was portrayed in a confidential report. The trial and appellate courts both held Doubleverify, Inc’s reports were protected under the anti-SLAPP statute. They further held context was irrelevant in analyzing whether an anti-SLAPP statute was applicable. However, the Supreme Court of California reversed this decision, holding “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.” (pg. 2)

The court reasoned Doubleverify’s reports do not qualify for anti-SLAPP protection because these reports are “generated for profit, exchanged confidentially, without being part of any attempt to participate in a larger public discussion.” (pg. 2) The court applied a two-pronged analysis to see if the anti-SLAPP statute applies, considering both the content of the speech and the context of the speech. This was significant because adding the ability to analyze the context of the speech, allowed the court to determine Doubleverify’s reports were only issued to further their business, not for the benefit of the public. Furthermore, the court determined Doubleverify had no intention of sharing the information in the confidential reports with the public. Thus, Doubleverify was using the anti-SLAPP statute as a shield so their true motivations behind the language in the confidential reports would not come to light.

The Supreme Court decision in this case refined the anti-SLAPP statute’s interpretation, filling in some rather large flaws in how the statute has been interpreted in the past. By applying this stricter interpretation, looking at both content and context, allows those using the anti-SLAPP statutes to be held to a stricter standard. This new interpretation weeds out those who wish to use the anti-SLAPP statute in a way in which the statute was not intended, and protects those who wish to benefit the public by bringing information to light they would not otherwise have been aware of.