finding that a competitor’s and its law firm’s posting on the Internet of the competitor’s allegedly defamatory federal-court complaint against a manufacturer was within the fair reporting privilege of Section 600.2911(3)
How later courts described this case
- finding that a competitor’s and its law firm’s posting on the Internet of the competitor’s allegedly defamatory federal-court complaint against a manufacturer was within the fair reporting privilege of Section 600.2911(3)
- considering state statutory exception to privilege that applied to libelous publications and holding that, where the defendant publishes a report of a complaint that itself was not libelous, the self-reporting exception does not apply
- noting long history of interrelated litigation
- “[A]s amended, . . . [MCL 600.2911’s] protection extended to anyone against whom damages might be awarded in a libel action for a publication or broadcast, not simply members of the newspaper trade.”
Written by the judges who cited it.
The opinion
SCHWARZER, Senior District Judge,
Concurring.
The application of Michigan’s Fair Reporting Statute, Michigan Compiled Laws § 600.2911(3) (2003), 1 to the facts of this case presents a question of first impression. Neither the Michigan Supreme Court nor any other court has issued a reported decision on the issue before us: whether the privilege applies to a party’s publication of a complaint it has filed in court. Our task is to predict how the Michigan Supreme Court would decide the issue. Mills v. GAP Corp., 20 F.3d 678 , 681 (6th Cir.1994).
In an early case, Park v. Detroit Free Press Co., 72 Mich. 560 , 40 N.W. 731 (1888), the Supreme Court addressed the validity of a statute which limited the liability of newspapers for publication of defamatory matter in the absence of bad faith and upon a prompt retraction. In dictum, the court referred to testimony concerning the newspaper reporters’ difficulty in getting access to the judges’ files and added:
One of the reasons why parties are privileged from suit for accusations made in the pleadings is that the pleadings are addressed to courts where the facts can be fairly tried, and to no other readers. If pleadings and other documents can be published to the world by any one who gets access to them, no more effectual way of doing malicious mischief with impunity could be devised than filing papers containing false and scurrilous charges, and getting those printed as news. The public have no rights to any information on private suits till they come up for public hearing or action in open court; and when any publication is *189 made involving such matters, they possess no privilege....
40 N.W. at 734 .
The Park decision, an echo from a distant past, antedates the adoption of § 600.2911, which clearly recognized the public’s “rights to ... information on private suits” when they are filed. See In re Midland Publ’g Co., 113 Mich.App. 55 , 317 N.W.2d 284, 288 (1982) (stating that “Michigan has long recognized a common-law right to access to public records.”). Thus, Park sheds no light on the scope of the statutory privilege.
As originally enacted in 1931, § 600.2911(c) protected only reporters, editors, publishers, or proprietors of newspapers. 2 Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157 , 398 N.W.2d 245, 248 (1987). Following that decision, in 1988 the statute was amended to significantly enlarge its scope. See Northland Wheels Roller Skating Center, Inc. v. Detroit Free Press, Inc., 213 Mich.App. 317 , 539 N.W.2d 774, 777 (1995). Thus, as amended, it no longer was limited to “public and official proceeding[s]” but applied as well to reports of “matters of public record,” and its protection extended to anyone against whom damages might be awarded in a libel action for a publication or broadcast, not simply members of the newspaper trade. While pre-amendment the statute would have afforded no protection to defendants in this case, the amendment plainly protects them for publishing a fair and true report of a matter of public record.
Amway contends nevertheless that defendants fall within the statute’s exception for libel “which is contained in a matter added by a person concerned in the publication.” 3 It argues that defendants authored the defamatory statements in the complaints and, having arranged for their dissemination on the internet, were persons concerned in their publication. It argues further that the qualifying clause, limiting the exception to matter “which was not part of the public and official proceeding” applies only to the second part of the exception dealing with reports of official proceedings. The argument is unavailing. As the district court found, it was undisputed that all the documents defendants provided and that were published were publicly available court documents. Dist. Ct. Op., Jt.App. 652. These documents were verbatim copies of what was in the court files, and thus they were “accurate reports of matters of public record.” Id. at 677, 680, 539 N.W.2d 774 . And all of the allegedly defamatory statements came from these complaints in the court files. Id. at 652, 539 N.W.2d 774 .
Amway contends that the publication of the complaints, though accurate, did not qualify as a fair and true report because it failed to present Amway’s side of the matters alleged in the complaints. Moreover, Amway charges that defendants abused *190 the privilege because they acted to further their anti-Amway motives. The statute cannot be read to require the publisher to give equal time to opponents of what is in the public record. To make the reporting privilege conditional on a balanced presentation, as Amway argues, would eviscerate it. What the statute requires is that matters of public record be reported fairly and truthfully, i.e., that the report is not “so edited and deleted as to misrepresent the proceeding and thus be misleading.” See Doe v. Doe, 941 F.2d 280, 289 (5th Cir.1991) (quoting Restatement (Second) of Torts § 611 cmt. f). So long as those conditions are met, motive is irrelevant. Stablein v. Schuster, 183 Mich.App. 477 , 455 N.W.2d 315, 317 (1990) (stating that “the statute makes it clear that defendant’s motivation is irrelevant if a fair and true report is made of the proceeding.”).
Amway further contends that defendants are excluded from the privilege under the Restatement (Second) of Torts. It cites § 611 comment c, which states that a person cannot confer the privilege upon himself by making the original defamatory publication himself and then reporting to other people what it had stated, even if the original publication was privileged. It also cites comment e, stating that “[t]he publication ... of the contents of preliminary pleadings such as a complaint or petition, before any judicial action has been taken is not within the rule stated in this Section.” 4 The argument is inapposite. Defendants claim the fair reporting privilege under § 600.2911(3), not under the Restatement. Moreover, because the Michigan statute and the Restatement are not coextensive, citation to the Restatement “is not helpful in [the court’s] effort to interpret the statute.” Rouch, 398 N.W.2d at 250 (stating that the Restatement’s “official action” privilege is broader than the statute’s privilege to report “public and official proceedings.”). 5
Amway’s contention that the fair reporting privilege protects only third parties is thus at odds with the plain language of the statute and contrary to common sense. Suppose the Wall Street Journal’s reporter copies a complaint on file and then reports on it in a story. The privilege would apply to him. But suppose that instead he writes his story on the basis of the complaint given to him by the plaintiff after it has been filed. The reporter would still be entitled to the privilege. It makes no sense to extend it to him but to subject the plaintiff to liability for giving him the complaint. 6 Or suppose the plaintiff, or perhaps her lawyer, is interviewed on a news program and responds with a fair and true summary of the complaint’s allegations. Surely it makes no sense to interpret the statute so as to extend the privilege to the interviewer but not to the interviewee.
For these reasons, I join in the affir-mance of the judgment.
. Quoted at Op. 185-86, above.
. It read, in relevant part: "No damages shall be awarded in any libel action brought against a reporter, editor, publisher, or proprietor of a newspaper for publication in it of a fair and true report of any public and official proceeding....” Rouch, 398 N.W.2d at 248 .
. The exception reads:
This privilege shall not apply to a libel which is contained in a matter added by a person concerned in the publication or con-tamed in the report of anything said or done at the time and place of the public and official proceeding or governmental notice, announcement, written or recorded report or record generally available to the public or act or action of a public body, which was not part of the public and official proceeding or governmental notice, announcement, written or recorded report or record generally available to the public or act or action of a public body.
. Quoted at 186, above.
. For that reason, cases decided under the Restatement's rule are not relevant. See, e.g., Kurczaba v. Pollock, 318 Ill.App.3d 686 , 252 Ill.Dec. 175 , 742 N.E.2d 425, 442-43 (2000).
. See Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 239 (Tex.App.2000) (stating that "[t]he harm resulting to a defamed party from delivery of pleadings in a lawsuit to the news media could demonstratively be no greater than if the news media found the pleadings on their own.”).