896 N.W.2d 69
Mich. Ct. App.2016Background
- Defendants (attorneys) filed a federal complaint alleging plaintiffs (Bedford, a prosecutor, and Stewart, an attorney) committed crimes and civil wrongs in underlying collection litigation; defendants later posted the complaint and a news interview about it on their law firm website.
- Witte, one of the defendants, gave a TV interview stating “we can say with certainty” plaintiffs obstructed justice, bribery, mail and wire fraud.
- Plaintiffs sued in Michigan state court for defamation arising from the federal complaint, the TV interview, and the website postings.
- Trial court held the judicial-proceedings absolute privilege barred liability for filing the federal complaint and that the fair reporting statute, MCL 600.2911(3), protected the interview and website postings; granted defendants’ MCR 2.116(C)(8) motions.
- On appeal the Michigan Court of Appeals reviewed de novo and affirmed that the judicial-proceedings privilege protected the filing and that MCL 600.2911(3) protected publication of the actual complaint on the website.
- The court reversed as to the TV interview and the website link to it, holding Witte’s added accusatory statements exceeded fair-and-true reportage and were not privileged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing the federal complaint is actionable | Bedford/Stewart: complaint contained false, malicious allegations; not privileged | Defendants: statements in the complaint are absolutely privileged as part of judicial proceedings | Held: Filing is absolutely privileged; not actionable (judicial-proceedings privilege) |
| Whether posting the federal complaint on firm website is privileged under MCL 600.2911(3) (fair reporting) | Plaintiffs: malice or being the complaint’s author defeats the privilege | Defendants: statute protects fair and true publication of public records; no malice/self-reporting exception | Held: Posting the complaint is protected by the statutory fair-reporting privilege; summary disposition appropriate |
| Whether malice or status as creator of record negates MCL 600.2911(3) privilege | Plaintiffs: actual malice or self-reporting should vitiate privilege | Defendants: statute’s plain text contains no malice/self-reporting exceptions | Held: Court finds no statutory exception for malice or self-reporting; privilege applies if report is fair and true |
| Whether the TV interview and link are protected by MCL 600.2911(3) | Plaintiffs: interview added defamatory allegations beyond the complaint; therefore not fair and true | Defendants: interview/report is about a public record and thus privileged | Held: Interview included added, definitive accusations that altered the record’s effect; not protected by fair-reporting privilege; link to interview likewise not privileged |
Key Cases Cited
- Amway Corp. v. Procter & Gamble Co., 346 F.3d 180 (6th Cir. 2003) (Michigan fair-reporting privilege applied to publication of entire complaints on a website; no exception for creator/self-publisher)
- Northland Wheels Roller Skating Ctr., Inc. v. Detroit Free Press, Inc., 213 Mich. App. 317 (1995) (defines "fair and true" standard for statutory fair-reporting privilege)
- Oesterle v. Wallace, 272 Mich. App. 260 (2006) (attorney statements during judicial proceedings are absolutely privileged if pertinent)
- Mitan v. Campbell, 474 Mich. 21 (2006) (elements of defamation claim)
- Timmis v. Bennett, 352 Mich. 355 (1958) (statements extraneous to judicial proceedings are not covered by the judicial absolute privilege)