Is it defamatory to falsely accuse someone of infringing intellectual property? Last month, the California Court of Appeal, in FilmOn.com v. DoubleVerify, Inc., affirmed the dismissal of a defamation action in which the defendant was accused of falsely labeling the plaintiff as a copyright infringer.
Does that mean you can just go ahead and call anyone you don’t like a copyright infringer, irrespective of whether it is true, secure in the knowledge that such accusations are protected speech? Not quite.
FilmOn.com v. DoubleVerify
Here’s what you need to know about this case. FilmOn.com, the plaintiff, is an internet-based entertainment content provider whose services include live television streaming. This particular service has led to several high profile copyright cases, brought against Filmon.com by the television stations who were being streamed.
DoubleVerify, the defendant, provides information to advertisers about the websites on which their advertisements appear, the object being to ensure that an advertiser’s brand is not being associated with inappropriate content. So, for example, if you market products to children, DoubleVerify can provide a report to help you steer your advertising away from websites in the “Adult” content category. In some of its reports, DoubleVerify classified FilmOn.com in the “Copyright Infringement-File Sharing” category, which DoubleVerify defined as “sites, presently or historically, associated with access to or distribution of copyrighted material without appropriate controls, licensing or permission.” FilmOn.com claimed that this categorization was false and that it was driving advertisers away.
Was it false? Was it defamatory? We never really found out because the merits were not reached. You see, long before DoubleVerify put FilmOn.com in the “Copyright Infringement” category, FilmOn.com was already a high-profile subject of public discussion around the issue of copyright infringement. Therefore, the Court held, DoubleVerify’s “Copyright Infringement” tag constituted speech about a matter of public interest, and dismissal of FilmOn.com’s claim was required under California’s anti-SLAPP statute.
So, this case does NOT hold that accusations of intellectual property infringement can’t be defamatory. Rather, it held that the continuation of an already-public discussion about copyright infringement is protected speech in California (which it should be noted has broader anti-SLAPP protections than nearly everywhere else). If you have a case in which California law is not applicable, or in which the plaintiff is not already the subject of public discussion, you may not enjoy the same protections as DoubleVerify.
Can False Accusations of Intellectual Property Infringement be Defamatory?
So, can false accusations of intellectual property infringement be defamatory? Short answer is yes. Sure, most accusations of infringement occur in the context of litigation, and therefore they are protected against defamation suits by an absolute litigation privilege. But outside the context of litigation, falsely accusing someone of copyright, trademark or patent infringement may lead to liability, provided that the requisite elements of defamation are present. These cases most commonly arise when a company makes accusations of infringement to a competitor’s customers. Frequently disputed legal issues include whether the accused statement is pure opinion, whether it was uttered with the requisite level of fault and whether there is evidence of actual pecuniary harm directly caused by the statement.