Court Finds Publication of Filing on Internet by a Party to be Protected Under Fair Reporting Act

Amway Corporation (“Amway”) and the Procter and Gamble Company (“P&G”) have a long history of corporate animosity, both publicly and in the court system. Sidney Schwartz (“Schwartz”) is creator and editor of an anti-Amway web site, where he publishes various Amway-related documents. P&G hired Schwartz as a non-testifying consultant, and provided him with a copy of a complaint they had filed against Amway in a Texas federal court (alleging, among other things, that “Amway operates as an illegal pyramid scheme”). Schwartz subsequently posted this complaint to his web site.Amway sued P&G for tortious interference with business relations, claiming that they had conspired with Schwartz to publish the documents. Amway then amended their complaint to include Schwartz and the law firm of Dinsmore & Shohl (“Dinsmore”). The defendants moved for summary judgment, which the district court granted to P&G and Dinsmore, finding that Michigan’s fair reporting privilege protects the dissemination of public court records. In this opinion, the court of appeals addresses the question of whether the posting of such documents by the parties who filed them is actually protected under the statute.

Amway’s primary claim on appeal was that P&G and Dinsmore, who created the Texas complaint, were not protected by the Michigan statute. In making their argument, they cited a case where the Michigan Supreme Court expressed worry that allowing people to file false charges and then publish them with impunity would provide a loophole to allow malicious defamatory statements to be published without fear, and held that such parties were not protected. In addition, Amway contended that the Second Restatement of Torts agreed that a person should not be allowed to confer the privilege of publishing such documents upon himself or those he colludes with. Finally, Amway made a statutory construction argument. The statute reads in relevant part, “The privilege should not apply to… a matter added by a person concerned in the publication … or act or action of a public body … which was not part of a report or record generally available to the public…” Amway claimed that the use of “or” meant that the clause which stated that the report must not be publicly available did not apply to “matters added by a person concerned in the publication,” such as P&G, and so the posting in question was excepted from protection under the statute.

The court found that the wording of the statue was clear, and that the “or” indicated that either type of posting had to be unavailable to the public, meaning that the exception was only for non-public material which was of concern to the publisher. Since the court documents were, in fact, publicly available, the defendants were still protected by the statute. They also found that the previous Michigan case was from a time period when court filings were not public records, and so its holding was not applicable to Amway’s case. Since the statute was clear and the previous case was no longer applicable, they found no need to analyze the Restatement of Torts, and the court affirmed the summary judgment of the lower court.

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