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In extremely contentious litigation between Amway Corp. and the Procter & Gamble Company, the 6th U.S. Circuit Court of Appeals has ruled that the posting of legal complaints containing allegedly defamatory statements on an Internet Web site did not create liability under the circumstances presented. As noted by the trial court, this particular case represented the third lawsuit in what was described as “a long history of corporate warfare between Amway and P&G.” Amway originally filed this lawsuit against P&G, alleging tortious interference with business relations, after the creator and editor of an anti-Amway Web site titled “Amway: The Untold Story,” published a complaint filed by P&G which had alleged that Amway, among other things, operated an illegal pyramid scheme. P&G moved for summary judgment, arguing that the Web site was protected speech, Amway was a pubic figure and thus needed to prove actual malice, there was no evidence of interference with Amway’s business relationships, and Amway could not prove a conspiracy between P&G and any other party. Amway argued that it had identified 99 statements published on the Web site that it claimed were falsehoods. Of those, 18 were attributed to P&G and its counsel. These 18 statements included 16 paragraphs from a complaint in which it is alleged Amway created an illegal pyramid scheme, and two statements from another complaint. Amway conceded that the complaints were court documents available to the public. The trial court granted summary judgment in favor of P&G. In so doing, the court found there was no evidence of a conspiracy, all the posted documents were publicly available, none of the allegedly defamatory statements was new, Amway is a public figure, and “the suit is really about business competition and bad blood rather than about the spread of rumors or the published attacks.” The trial court also found that the speech alleged to be defamatory was privileged and subject to First Amendment protections and that Amway, as a public figure, failed to prove not only that the speech was false, but that P&G acted with malice or with the knowledge that the statements were false or made with the reckless disregard of whether they were false. Finally, the trial court granted summary judgment for P&G by applying the fair reporting privilege under Michigan law, which protects parties that fairly and accurately report information that substantially represents matters contained in court records. The Court of Appeals affirmed the grant of summary judgment by the trial court. Specifically, the appellate court held that “a party’s publication of any actual court filing or statement made in a judicial proceeding is privileged because the public has a legitimate interest in accessing and viewing that type of information.” At the conclusion of its decision, the appellate court stated its hope that the decision “will end the hatred these two corporate giants harbor for each other.” The court declared its further hope that “they will consider the impact of their continuing legal battle on the scare resources of the courts, and decide to concentrate their creative talents on the more traditional methods of gaining competitive advantage and declare a ceasefire in the judicial arena.” This result certainly gives the impression that a party will not be liable for the posting of a publicly available legal complaint on an Internet Web site. However, we should not be too fast to jump to conclusions. Circumstances can vary. For example, if a party purposely files a legal complaint knowing that it contains defamatory statements, solely so the party then could try to post the complaint on a Web site with apparent immunity, one can readily imagine how there could be liability for such a practice. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. Mr. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected] . To receive a weekly e-mail link to Mr. Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected] .

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