Marketing Defamation: A New Type Of Online Business Libel

marketing defamation lawyer
A new marketing trade libel lawsuit may be one of the first of its kind.

Dust off a deerstalker and limber that legal mind — for a fascinating libel lawsuit is afoot!

Video streaming company, FilmOn, is suing high-level Web analytics/Online Marketing firm, DoubleVerify, for what can only be described as “classification marketing defamation.”

FilmOn v. DoubleVerify presents a different type of libel – one singular to online marketing analysis. Plus, the case teases a new set of legal questions regarding the intersection of new-model media distribution, digital globalization and reputational torts.

The Two Sides of This Marketing Defamation Lawsuit: Filman & DoubleVerify

The Plaintiff: Filman

A decidedly 21st century venture, FilmOn deals in all things streaming. The company offers a plethora of packages ranging from global video-on-demand services to custom branded media players. According to Business Insider, “FilmOn provides hundreds of live TV channels and on-demand programming to the web, both for free and with some content behind a subscription.”

Judging from the website, it appears FilmOn doesn’t necessarily develop content, but instead provides private-label streaming — and more. For example, a convention may use FilmOn for customized video services; or, a business may order a bespoke media player.  Individual TV-streaming packages are also available. In essence, FilmOn isn’t necessarily a content creator, but instead a platform provider.

The Defendant: DoubleVerify

A high-level Web analytics firm, DoubleVerify promises clients “appropriate environments for [their] brands with real-time blocking controls.” In other words, they help you make sure your online advertisements appear in “apt” online neighborhoods.

For example, if a company is selling a family-friendly product, it probably doesn’t want to advertise on an “adult entertainment” website. DoubleVerify helps with that.

The Main Issue: Undesirable Classification

The issue anchoring FilmOn v. DoubleVerify is straightforward:

DoublVerify labeled FilmOn a “copyright violator” and “adult content distributor” in its advertising classification database.

As a result, many DoubleVerify brands opted not to have their ads appear on FilmOn’s website – which decimated the streaming company’s bottom line. After all, like many online-based businesses, Internet advertising dollars are a significant revenue stream for FilmOn.

We Are Not What You Say We Are

When FilmOn executives learned of their company’s classification in the DoubleVerify system, they contacted the analytics advertising firm, explained how their services worked, and cogently argued that, legally speaking, FilmOn is not a copyright violator, nor adult entertainment purveyor.

But their pleas failed; in the eyes of DoubleVerify, FilmOn remained an intellectual property infringing p-rn runner.

Unwilling to let the classification stand, the streaming media company filed a business lawsuit against the online marketing outfit.

What Makes The FilmOn v. DoubleVerify Business Defamation Lawsuit Interesting?

FilmOn v. DoubleVerify is worth mentioning because it speaks to the current state of the marketplace – the marketing-dependent state.

Think about it for a second: a giant chunk of the digital economy is fueled by marketing. If I were feeling cynical and extra get-off-my-lawn-y (which I’m not), I might remonstrate: “People used to make things that were then marketed, now we just market marketing!” Which is fine. The trend will continue the more digital we become. But the shift does present a new set of legal questions and implications.

The Shift To Big-Data Marketing: The Legal Implications

Will this tectonic shift to big-data marketing impact business law? Marketing defamation law?

Reputation classifications will become more popular, and lawsuits like FilmOn v. DoubleVerify will become the norm. Moving forward, businesses must be diligent about monitoring online reputations — not just online, but in brand databases.

Marketing, Subjectivity and Defamation Law

As the marketing industry metastasizes, questions regarding subjectivity, as it relates to defamation law, will come to the fore. Cloud- and platform-oriented services, as opposed to content-oriented services, will present new legal quandaries in the coming years. Will Section 230 of the Communications Decency Act suffice?

Soon, courts will need to establish case law addressing “classification marketing defamation” as a separate phenomenon.

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