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Recent Developments in Anti-SLAPP Cases for Determining Protected Activities
In the last three years, there have been a number of decisions issued by California courts on anti-SLAPP motions filed in response to lawsuits arising out of the publication and/or distribution of entertainment works. Indeed, since July 2009 alone there have been decisions in lawsuits regarding works in virtually every medium, including television, film, radio, magazines, books, video games and Internet sites. In each one of these cases, the court was tasked with deciding whether the statements or conduct at issue in the lawsuit arose out of activity protected by California's anti-Strategic Lawsuits Against Public Participation (anti-SLAPP statute). In light of the burgeoning number of states that have adopted anti-SLAPP statutes since Washington state enacted the first modern anti-SLAPP statute in 1989, it is important to review the recent developments in this area.
The basics of anti-SLAPP procedure are well-known to most entertainment and media practitioners at this point. In California, a defendant carries the initial burden to prove that its conduct is covered by the anti-SLAPP statute by showing that the plaintiff's claim arises from “any act of [defendant] in furtherance of [its] right of petition or free speech under the United States or California Constitution in connection with a public issue.” Cal. Civ. Proc. Code '425.16(b)(1). If so, the burden shifts to the plaintiff to establish a probability that the plaintiff will prevail on his or her claims. Id. In order to do so, “the plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the plaintiff's favor.” Hall v. Time Warner, Inc., 153 Cal. App. 4th 1337, 1346 (2007) (emphasis added). If the plaintiff meets this burden, “the moving defendant can defeat the plaintiff's evidentiary showing only if the defendant's evidence establishes as a matter of law that the plaintiff cannot prevail.” Id.
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