Remember Pac-Man and Donkey Kong, two of the first arcade games that kickstarted today’s global obsession with video games? The man dubbed “The Video Game Player of the Century” was accused of cheating during a competition by a company that tracks scores. He sued for defamation, and the company’s motion to dismiss was denied. Now, the lawsuit over who is best at gobbling up colorful dots and protecting bananas from marauding creatures can proceed.

Judge Sam Ohta, sitting on assignment in Division Eight of the Second Appellate District of the Court of Appeal for the State of California, wrote the unanimous opinion of a three-judge panel.

The suit was filed by William “Billy” Mitchell against Twin Galaxies, a Beverly Hills company which, according to its website, “is the electronic gaming industry’s premiere statistician,” dedicated to preserving the history of video gaming in a huge database that documents gaming milestones. Twin Galaxies said Mitchell’s perfect scores on Donkey Kong were achieved with the help of modified hardware.

Twin Galaxies removed Mitchell’s record-breaking scores from all of its leaderboards and banned him from ever being listed in the future. The leaderboard is regularly used by reference books such as the Guinness World Records Gamer’s Edition. Mitchell sued for defamation and false light. Los Angeles Superior Court Judge Gregory Alarcon issued the original order denying Twin Galaxies’ special motion to strike under California’s strategic lawsuits against public participation statue (anti-SLAPP motion.)” The appellate court affirmed on October 12.

Mitchell holds world records for both Pac-Man and Donkey Kong. He achieved the first-ever perfect Pac-Man score, and the game’s manufacturer NAMCO dubbed him “The Video Game Player of the Century.” He was also featured in a documentary about competitive gaming. This case involves Mitchell’s three record-breaking scores on Donkey Kong, achieved between 2004 and 2010.

Twin Galaxies details procedures for challenging scores listed on its website. After a disputed score is submitted, it is placed into what the company calls a “public dispute voting forum” for discussion, debate, presentation of evidence, and voting. A gamer named Jeremy Young disputed Williams’s scores on Donkey Kong and two other games by claiming they could only have been achieved by modifying the game’s original hardware through the use of what he called a “M.A.M.E.” system.

Young provided Twin Galaxies with frame-by-frame screenshots of the two versions to facilitate comparisons and uncover irregularities. The company posted Young’s videos on its website, received comments from the public, and also conducted its own investigation. One player, engaged by Mitchell, supported Twin Galaxies’ findings.

After its investigation, Twin Galaxies posted its conclusion: “Based on the complete body of evidence presented in this official dispute thread, Twin Galaxies administrative staff has unanimously decided to remove all of Billy Mitchell’s scores as well as ban him from participating in our competitive leaderboards.” It stated that two of Mitchell’s Donkey Kong scores were “not produced by the direct feed output of an original,” but they were not able to reach a conclusion about the third disputed score.

Twin Galaxies’ conclusions were posted on its website and other social media sites and caught the attention of several mainstream media outlets such as The New York Times, The Washington Post, and Variety. Mitchell’s demand for a retraction by Twin Galaxies was denied. Mitchell then sued Twin Galaxies for defamation by “implying” that he cheated. He also sued for special damages, claiming the company’s actions harmed sales for Rickey’s Hot Sauce, his company that his gaming virtuosity helped promote. Defamation is ‘the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or that causes special damage.”

Mitchell also sued for false light, “a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.” To prevail on both defamation and false light suits, a plaintiff must show “by clear and convincing evidence, that the defamatory statement was made with actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false.” A preponderance of the evidence is required.

Twin Galaxies responded with an anti-SLAPP motion that argued its statements about Mitchell “arose from protected activity.” In California, several factors are used to determine whether the disputed statements relate to an issue of public interest. Among these, according to the Reporters Committee for Freedom of the Press, are whether the statement “could affect large numbers of people” or whether it “contributes to debate on a matter of widespread public interest.”

The California anti-SLAPP statute allows defendants like Twin Galaxies to file motions to strike. Judge Ohta explained, “The Legislature enacted the anti-SLAPP statute to address the societal ills caused by meritless lawsuits filed to chill the exercise of First Amendment rights…The statute accomplishes this by providing a special procedure for striking meritless, chilling claims at an early stage of litigation.”

The anti-SLAPP statute establishes a two-step test that must be met in order to prevail. Defendants must first convince the court that the statements are in the public interest. Second, Twin Galaxies’ motion would be granted unless Mitchell met his burden of proving that he will prevail on the claim. To support their motion, Twin Galaxies submitted reports of the company’s investigation that detailed the comparisons between the videotapes of the pure and allegedly adulterated versions of the game.

Mitchell opposed the anti-SLAPP motion by submitting evidence that included a declaration that urged Twin Galaxies' new owner, Jason Hall, to interview several witnesses, including Walter Day, the founder and original owner of the company. Hall refused. Mitchell then detailed the competition rules that had been established by Day. These included the appointment of referees, oversight by a senior engineer who verified that the original hardware was unmodified, security to protect the inspected hardware, and proof that he had no access to the hardware before or after his competition.

Mitchell set his first record in 2007, and his score was documented by Twin Galaxies referees. After the competitions, convention organizers then returned the hardware to the senior engineers for additional verification. Similar security procedures were also followed in 2010 when Mitchell set another new record. He also highlighted some problems with Young’s claims about chain of custody, discrepancies between the dates that disputed when M.A.M.E. systems were invented, and the absence of his image on evidentiary tapes. Further declarations were submitted by both parties.

Judge Ohta’s discussion began by citing the agreement that Mitchell’s claims for defamation and false light arose from protected activity, thus satisfying the first prong of the anti-SLAPP test. But could the second prong, the one requiring Mitchell to show he has a probability of prevailing on his claims, be satisfied? After discussing the evidence provided by both sides, Ohta said that Mitchell “demonstrated the requisite ‘minimal merit’ to his claims to defeat the anti-SLAPP motion.” He pointed to Twin Galaxies’ decisions to avoid facts that “might confirm the probable falsity of the challenged statements.”

Ohta affirmed the ruling of the lower court regarding both the defamation and false light claims, denied Twin Galaxies’ anti-SLAPP motion, and awarded costs to Mitchell.