Defamation Law in Florida

Defamation Law in Florida Introduction:

The information below is provided by attorney Maurice Arcadier, Esq., MBA. An experienced attorney, board certified and 23 years of experience. Mr. Arcadier is a recognized lecturer, having lectured at Florida International University, NACLE, and conventions. Mr. Arcadier has been practicing employment and defamation law for over 20 years and has tried numerous cases and appeals. The content below is designed to educate Florida residents with defamation issues and to help other attorneys, who do not specialize in defamation law, to identify issues and to help the reader in determining whether they may have a defamation case given their own personal situation. The information below is not intended to replace sound legal advice. Defamation law has many nuances and it is fact intensive, meaning, a careful review of the facts, including the context of the facts, need to be analyzed and applied to the current laws. Defamation law is constantly evolving, and as the proliferation of social media continues to evolve, the Courts are slowly addressing the legal applications to current events.

Part of the complexities of defamation occurs because of the interplay between protected first Amendment rights, and the right of privacy of individuals. On the one hand, our jurisprudence demands the protection of speech, whether it is by the media, in writing, in a publication, or verbal utterances. On the other, the Law and the Courts desire to protect harms against individuals or corporations as a result of malice or ill-will which results in defaming innocent individuals or viable companies.

Types of defamation:

There are two types of defamation: Libel and slander. Libel means defamation which occurs in writing or through a publication. Slander means defamation from verbal utterances and verbal speech.

Statute of Limitations:

F.S. 95.11(4)(g) applies a two-year statute of limitations from date of publication.

What is Defamation:

In its simplest form, defamation is a false statement which causes damages.

Elements of Defamation Under Florida Law

The elements of a defamation claim, as straight forward:

To establish a cause of action for defamation, a plaintiff must show that (1) the defendant made a false statement about the plaintiff, (2) to a third party, and (3) the falsity of the statement caused injury to the plaintiff. NITV, L.L.C. v. Baker, 61 So. 3d 1249, 1252 (Fla. 4th DCA 2011).

What means Defamation Element 1: “the defendant made a false statement about the plaintiff”

For starters, expressions of opinion are privileged and are protected by our constitution.

Hoch v. Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., 742 So. 2d 451, 459 (Fla. 5th DCA 1999). As such, having an opinion such as: John Doe is a bad person, is not going to be defamation.

The next level of complexity deals with what used to be known as “false light” defamation. False light does not necessarily involve false facts, but rather, organizing the facts in such a manner which causes the reader or hearer to form a false impression. In 2008, the Florida Supreme Court, in a landmark decision, Jews for Jesus v. Rapp, No. SC06-2491 (Fla 2008) abolished the separate cause of action of false light and merged it into Defamation by implication. The Court stated:

“Defamation by implication arises, not from what is stated, but from what is implied when a defendant ‘(1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts, [such that] he may be held responsible for the defamatory implication ․’ ” (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 116, at 117 (5th ed. Supp.1988))); Mohr v. Grant, 153 Wash.2d 812, 108 P.3d 768, 774-76 (2005) (same); Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 596 (D.C.2000) (“[B]ecause the Constitution provides a sanctuary for truth, ․ [t]he [defamatory] language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference.” (quoting Chapin v. Knight-Ridder, 993 F.2d 1087, 1092-93 (4th Cir.1993))); Armstrong v. Simon & Schuster, Inc., 85 N.Y.2d 373, 625 N.Y.S.2d 477, 649 N.E.2d 825, 829-30 (1995) (“ ‘Defamation by implication’ is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements.”); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 13, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (recognizing that defamation can arise where a statement of opinion reasonably implies false and defamatory facts); Cooper v. Greeley & McElrath, 1 Denio 347, 348 (N.Y.Sup.Ct.1845) (holding that a publisher was liable to James Fennimore Cooper for a publication that implied Fennimore had a poor reputation); Restatement (Second) of Torts § 566 (“A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts․”).”

Defamation by implication must be pled, otherwise, if the statements are actually truthful, then the Affirmative Defense stating that there is no defamation because the subject statements are truthful, will be difficult to overcome.

What means Defamation Element 2: “The defamatory statement must be said to a third party.”

Simple enough right? Not so fast.

First the defamation is not actionable defamation if the intended recipient of the defamatory statement was the Plaintiff.

To meet the standard for publication to a third party, a plaintiff “must allege the ‘identity of the particular person to whom the remarks were made with a reasonable degree of certainty’ to afford the defendant ‘enough information to determine affirmative defenses.’” Aflalo, 2018 WL 3235529, at *3–4 (citing Ward v. Triple Canopy, Inc., No. 8:17-cv-802-T-24, 2017 WL 3149431, at *4 (M.D. Fla. July 25, 2017)).

Also,

Florida recognizes the Intra-corporate conspiracy doctrine in many contexts.

“The intra-corporate conspiracy doctrine provides that employees of a corporation or governmental entity cannot conspire among themselves because they are treated as one entity.” Nuovo v. The Ohio State Univ., 726 F. Supp. 2d 829, 845 (S.D. Ohio 2010) (citing Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509 (6th Cir. 1991)). The doctrine has been applied to the Ohio common law civil conspiracy claim. Id. (citing Lutz v. Chesapeake Appalachia, L.L.C., No. 4:09CV2256, 2010 WL 2541669, at *5 n. 13 (N.D.Ohio June 18, 2010)). However, an exception to the doctrine exists when the challenged activity takes place outside the scope of employment and done out of self-interest.

Although no appellate court has ruled on this issue, it is likely that a company that writes false information about an employee in an employee evaluation and shares it with the rest of the employees, will be deemed not to have disclosed the publication to a third party.

Also, one cannot defame himself, which includes related companies or businesses that one controls.

What means Defamation Element 3: “the falsity of the statement caused injury to the plaintiff. “

This is where the complexity of defamation cases shows its true colors. Showing damages is the most basic of elements in tort cases. In defamation cases, damages may not be so clear, which includes, what is the value of reputation, how do you prove the amount of business one has lost, how do you prove the losses suffered?

The evolution of the case law has created to types of defamation cases. Per Se and Per Quod. Depending on which type of defamation has occurred will determine the types of damages which need to be proved. The landmark case for this analysis is Layman

Under Florida Law, Per Se defamation is any of the following:

(1) a loathsome disease

(2) conduct incompatible with one’s profession

(3) a woman being “unchaste” (

4) an infamous crime (typically at least a felony) or

(5) allegations that subjected one to hatred, distrust, ridicule

And, the defamatory act, is considered alone and without innuendo.

Courts have been very strict with the categories above. For instance:

Saying someone is a fraud, is not per se because it requires additional information and context to fully understand whether it rises to the level of an infamous crime.

Falsely stating that someone is avoiding to pay child support is also not enough to be per se defamation.

The 5^th type, allegations that subjected one to hatred, distrust, ridicule, is also strictly construed. For instance, calling and publishing that someone a drunk is not enough.

“Also, to prevail on a defamation per se case, a plaintiff must allege the “identity of the particular person to whom the remarks were made with a reasonable degree of certainty” to afford the defendant “enough information to determine affirmative defenses.” Ward v. Triple Canopy, Inc., 2017 U.S. Dist. LEXIS 115472, at *4 (M.D. Fla. July 25, 2017). “

If plaintiff is unable to plead and establish defamation per se, then, the type of defamation is “per quod” and actual damages must be proved.

Per Quod (““by reason of which”) is the most common type of defamation.

Defamation per quod is not apparent on its face, and must be plead with a showing of actual damages.

In Florida, defamation per quod actions require an allegation and proof that the defamation precipitated an actual injury. In this instance, precipitated means that the defamation was the cause of injury. Johnson v. Finance Acceptance Co., 118 Fla. 397, 401 (Fla. 1935).

Words in a per quod action are NOT on their face injurious, therefore, Florida requires plaintiffs to use extrinsic evidence to support the defamatory nature. Boyles v. Mid-Florida TV Corp., 431 So. 2d 627, 633 (Fla. Dist. Ct. App. 5th Dist. 1983). And, in cases of innuendo, extrinsic evidence must be supplied that “must be known in order to inflict an injury.” Id.

Additional Topics:

Jury instructions. Most experienced trial attorneys will be very familiar with the likely jury instructions the case may have. Currently, the Florida Standard Jury Instructions for defamation include the following language:

What means the defense of The Truth:

“a statement is substantially true if its substance or gist conveys essentially the same meaning that the truth would have conveyed. In making this determination, you should consider the context in which the statement is made and disregard any minor inaccuracies that do not affect the substance of the statement.” Standard Jury Instructions-Civil Cases (No. 00-1), 795 So.2d 51, 57 (Fla.2001) (emphasis added).¹² The legal significance of the “gist” of a publication was noted in W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 116, at 117 (5th ed. Supp.1988), which stated that while defamation law shields publishers from liability for minor factual inaccuracies, “it also works in reverse, to impose liability upon the defendant who has the details right but the ‘gist’ wrong.”

In Defamation by Implication Cases:

Simply put, “if the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, he may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct.”

The complete standard Jury Instructions for the type of defamation cases which may arise is provided in Appendix A. Of course, the jury instructions have to be tailored to the specifics of the case, and, citing applicable case law, certain aspects of the standard defamation jury instructions may be modified or appended.

Web site boards, Facebook

Defamation in the Employment Context:

Florida Statue 768.095, disclosures of references to prospective employers

The statute states:

768.095 Employer immunity from liability; disclosure of information regarding former or current employees.—An employer who discloses information about a former or current employee to a prospective employer of the former or current employee upon request of the prospective employer or of the former or current employee is immune from civil liability for such disclosure or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under chapter 760.

Utilizing the statute, the Courts have interpreted the statute to create the following additional requirements:

Must prove by clear and convincing evidence that any statement made about her by the Defendant to any prospective employer was knowingly false, deliberately misleading, or rendered with a malicious purpose. See Linafelt v. Beverly Enterprises-Florida, Inc., 745 So 2d. 386 (Fla. 1st DCA 1999).

When a statement is made by an employer regarding an employee’s performance it is conditionally privileged and the burden shifts to the plaintiff to establish that the privilege was lost through express malice or improper purpose. Randolph v. Beer, 695 So. 2d 401, 404 (Fla. 5th DCA 1997)

Statutory Defamation / Criminal Statute

Florida Law has a few criminal statutes for defamation which includes:

836.01 Punishment for libel.—Any person convicted of the publication of a libel shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Though the application of the statute in a criminal law context is limited, the fact that certain types of defamation acts are criminal has evidentiary value and helps meet the malice requirement in certain types of cases.

Also, see Criminal Statutes

Litigation Privilege

Litigation privilege applies to pleadings filed in a case. Pleadings can be strike, and in any event, they are simply allegations. Because of the litigation privilege, a defamation claim can not arise as a result of making false allegations. Of course, sanctions with the trial judge may be pursued as part of the underlying case, and, under certain scenarios, a private cause of action may ensue after the conclusion of the underlying case, such as malicious prosecution, as well as an abuse of process claims.

Media Defendant:

Under Florida’s defamation law, a prospective plaintiff is required to give a media defendant notice five days before initiating a civil action. § 770.01, Fla. Stat. (2007). The notice must specify the alleged false and defamatory statements contained in the article or broadcast. Id. Further, section 770.02, limits the amount of damages a plaintiff may recover where: (1) the statements were published in good faith; (2) the statements were false due to an honest mistake of facts; (3) there were reasonable grounds for believing the statements were true; and (4) a full and fair correction, apology, or retraction was published or broadcast within a specific time period. The Courts have interpreted these condition to be necessary protections to ensure the delicate balance between preventing tortious injury resulting from defamatory statements and protecting the constitutional right to free speech.

The notice requirement is a condition precedent, meaning, failure to give the notice results in not being able to bring forth the claim.

With the advent of social media, Courts have adapted the media defendant to include bloggers and web sites that distribute information on the web.

Other considerations:

Normally not covered by insurance, since it is an intentional tort.

Florida Defamation Law, October 2020

By Maurice Arcadier, Esq.

Mr. Arcadier is a board certified attorney and is regarded as an expert in Florida Defamation Law. Below is a complete transcript of a Florida Defamation Lecture. The lecture was sponsored by NACLE which is the national recognized organization which provides continuing education for attorneys. The intent of the lecture was to provide a general understanding and analysis of Florida Defamation Law. The lecture was prepared in October 2020.

Introduction:

Welcome to Florida Defamation Law. My name is Maurice Arcadier. I am the managing partner of Arcadier, Biggie and Wood, PLLC located in central Florida. I am a board-certified litigation attorney and I have been practicing law for 23 years. My areas of practice include defamation, commercial litigation, and employment law, and includes trial and appellate work.

The purpose of this lecture is to assist attorneys identify issues and provide a flavor as to the factual and legal complexities of defamation law. The goal is to help attorneys understand the elements of a defamation claim, the type of defenses, and to give a background as to legal issues that may need to be addressed at the trial level or appellate level as the case may be.

Defamation law has many nuances and it is fact intensive, meaning, a careful review of the facts, including the context of the facts, need to be analyzed and applied to the current laws. This lecture is not intended to substitute sound legal advice from an experienced attorney who can hear the particular fact pattern of the defamation case.

Also, Defamation law is constantly evolving, and as the proliferation of social media continues to evolve, the Courts are slowly addressing the legal applications to current events.

There are two types of defamation: Libel and slander. Libel means defamation which occurs in writing or through a written publication. Slander means defamation from verbal utterances and verbal speech.

In Florida, Defamation cases have a two-year statute of limitation, which means, that a defamation claim must be brought forth within two years from the date of the publication. This is codified under Florida Statute 95.11(4)(g). It used to be the case that publications existed solely in print, which of course means that the date of the publication was easily discernable. Similarly, in the case of slander, the date of the publication was the date in which the last actionable statement was made. A republication can also trigger a new Statute of Limitations date. A republication occurs on the date that the defamation is republished, even if it was simply copied from a previous publication.

However, with the advent of web sites and digital publications, it is not always the case that the publication date is easily known. For instance, if a publication is made on a web site, is it the publication date that the web site was last amended? or is it the date when the article was first published? Although I am unaware of any appellate cases specifically addressing this issue, Florida Trial Courts are tending to use the date in which the article was last amended, even if the amendment or update has nothing to do with the defamatory language. For instance, an article which provides new information below the previously published information, would trigger a new statute of limitations commencement date as it would be considered a republication.

Alright, so what is Defamation

In its simplest form, defamation is a false statement which causes damages.

And, as to the elements of defamation, they are also pretty straight forward:

1. The defendant made a false statement about the plaintiff

2. The false statement was published to a third party, and

3. The falsity of the statement caused injury to the plaintiff.

Lets go deeper into the Elements:

Lets talk about what the first element means, in particular, what does it mean that “the defendant made a false statement about the plaintiff”

For starters, expressions of opinion are privileged and are protected by our Constitution.

For instance, having an opinion such as: John Doe is a bad person, is not going to be defamation. Other examples of statements which Florida Courts have recognized as opinions include: John Doe abuses the elderly, John Doe is profane John Doe is Lazy, or John Doe never does good work.

Also, the truth is generally an affirmative defense to Defamation. But even that, tends to get complicated and convoluted very fast, and that is because Defamation can exist even if something is truthful, but it is somehow juxtaposed in a way that creates a false impression.

Prior to 2008, Florida Law recognized claims under a False Light private cause of action. False light does not necessarily involve false facts, but rather, organizing the facts in such a manner which causes the reader or hearer to form a false impression.

In 2008, the Florida Supreme Court, in a landmark decision, Jews for Jesus v. Rapp, the Supreme Court of Florida abolished the separate cause of action of false light. By the way, Jews for Jesus is definitely a case that is a must read for anyone considering practicing in the area of Florida Defamation Law as it lays out the history of defamation law in Florida. In Jews for Jesus, the Court eliminated the common law claim of False Light. In its place, the Court merged the false light claims into a category known as: Defamation by implication.

The Court said that:

“Defamation by implication arises, not from what is stated, but from what is implied when a defendant either ‘(1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts, [such that] the defendant may be held responsible for the defamatory implication ․

The Court further stated: “A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts․”).”

Simply put, “if the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, Defendant may be held responsible for the defamatory implication, unless it qualifies as an opinion, even though the particular facts are correct.”

Courts also tend to be strict in the pleading requirements of Defamation cases. For instance, defamation by implication must be plead, and should be pled as a separate and distinct count. Also, when there are multiple defendants, each of the defendants should be separated into separate counts for each of their types of defamatory statements.

There are dozens of noteworthy Florida Appellate cases which have further explained what Defamation by Implication means:

In Boyles v. Mid-Fla. Television Corp., the 4^th District Court of Florida reversed a trial Court dismissal based on statements that implied that plaintiff was a suspect in the death of the child, and was a habitual tormentor of retarded patients. Boyles worked at the group home, but was not working on the date that the child passed away. The Defendant published truthful statements about Plaintiff’s evaluations and areas where employer said Boyles needed to improve. These statements about Boyles was made in the story that was published about the child’s death, thereby insinuating and implicating, without stating, that Boyles was complicit in the child’s death. The Court in Boyles determined that even though the statements about Boyle’s employment record were truthful, defamation by implication still existed because giving the truthful details about Boyles as part of the wrongful death article implicated that Boyle’s contributed to the wrongful death of the child.

Next, lets talk about the second element:

The second element in a defamation case states that “The defamatory statement must be said to a third party.”

Simple enough right? Well, not so fast.

First the defamation is not actionable defamation if the intended recipient of the defamatory statement was the Plaintiff.

So for instance, if Defendant tells Plaintiff “I saw you steal yesterday,” and someone overhears it, the defamation was not said to a third party. Who the defamatory statement is intended for is the conclusive determinant factor as to whether the element … to a third party, has been met.

Also, to meet the standard for publication to a third party, a plaintiff must be able to prove, and “the complaint must allege the ‘identity of the particular person to whom the remarks were made with a reasonable degree of certainty.

However, In Brown v. Tallahassee Democrat, Inc., the Florida First District Court of Appeals overturned a trial Court’s dismissal of the defamation case. In Brown, the Defendant simply published a picture of Plaintiff in a story about a murder, which implied that the countenance of the person in the picture was a murderer. However, the Defendant never disclosed or published the name of Brown. The appellate court reasoned that the published picture is enough to discern who Plaintiff is, and the juxtaposition of the picture with the contents of the article constituted enough to subject Defendant to the claim of defamation by implication.

Also, Florida recognizes the Intra-corporate conspiracy doctrine in many contexts.

In the Florida Defamation context, “The intra-corporate conspiracy doctrine provides that employees of a corporation or governmental entity cannot defame each other because they are treated as one entity.”

This means that a company cannot be held liable for defamation if a supervisor defames an employee by stating false information about the supervisor’s subordinate. Under the intra-corporate conspiracy doctrine, the supervisor and subordinate of employer are both employees of the company, and as such, the law will treat the statement as a defamatory statement made from the same person meaning, it defamed itself. In other words, employees of the company who defame each other are really just defaming elements of the company itself. Since employees of the same company are not third parties, the defamatory statements perpetuated by one employee against another will not give rise to a claim for defamation because the second element cannot be had.

However, an exception to the doctrine exists when the challenged activity takes place outside the scope of employment and done out of self-interest. For instance, if an employee accuses another employee of stealing outside of work, and the employee makes the accusation to advance his own personal interest, then, that is enough to establish the exception to this doctrine. The way we normally see this play out is when an employee wants to get another employee fired because they do not get along, or one of the employees wants the job of the other.

The third Element of defamation is damages:

This is where the complexity of defamation cases shows its true colors. Showing damages is the most basic of elements in tort related cases. In defamation cases in particular, damages may not be so clear. This is because there are many intangible aspects to defamation such as what is the value of a reputation, how do you show the amount of business one has lost as a result of a fake review, and how do you prove the losses suffered?

The evolution of the case law has created two types of defamation cases. Per Se and Per Quod. Depending on which type of defamation has occurred will determine the types of damages and remedies that are available as well as determine how the damages need to be proved.

In Per se Defamation cases, damages are assumed, meaning, actual damages do not need to be proved. In contrast, In per quod defamation cases, actual damages must be proved.

So, lets talk about Defamation per se:

Under Florida Law, Per Se defamation is a defamatory statement that is defamatory on its face, meaning, no extrinsic or contextual evidence is needed. Meaning, the defamatory act, can be considered alone and without innuendo.

AND must be one of the following:

Making a defamatory statement about Plaintiff having loathsome disease.

For instance, claiming falsely that someone has HIV would be enough, but claiming someone has the flu would not.

(2) Making a defamatory statement which attacks one’s profession or business.

This is the most common type of per se defamation. It arises in many contexts, such as online reviews where a customer makes false accusations about the business not being licensed, or when one business is defaming another business to gain a competitive advantage, or someone falsely claiming that a professional has been disbarred or reprimanded by a licensing board.

Making a defamatory statement about a woman being “unchaste” which includes relating to or engaging in sexual activity of an illicit or extramarital nature.

Many of these types of cases are arising from Facebook postings of disgruntled exes who have made defamatory statement about a woman’s proclivities or false accusations of adultery. Interesting to note, that under this category, thus far, Florida Courts have only recognized defamatory victims to be limited to women.

4) an infamous crime

Florida has been strict in defining infamous crimes. Florida Courts have drawn the line between felonies and other crimes. So a felony can be considered an infamous crime, but a misdemeanor cannot. Additionally, Courts have categorized certain types of defamatory statements to be Rhetorical hyperbole, and therefore, not actionable.

A statement is considered rhetorical hyperbole when “the language itself negates the impression that the writer was seriously maintaining that the plaintiff committed the particular act forming the basis of the defamation.”

For instance, someone stating “he lynches everyone” in the context to mean, he fires someone, is not defamatory. Also, statements such as “he is a fraud” is not per se defamation because it requires additional facts to be able to discern its context. When context is considered and ‘extrinsic facts and innuendo are needed to prove the defamatory nature of the words,’ the statements are not defamatory per se. So a statement: “he is a fraud” may fall into the category of defamation per quod, but it will not be defamation per se.

And finally #5, which is almost like a catch all or at least where most attorneys try to fit their client’s defamation claims into per se defamation

And that is, …allegations that subjected one to hatred, distrust, or ridicule.

However, Florida Courts have consistently ruled that the defamation statement must be severe and extreme.

Publications such as:

Plaintiff took advantage of an old sick man and committed elder abuse is not enough.

Plaintiff is a drunkard, is not enough.

Courts are left with the challenge to determine whether actionable expressions are pure opinion, are per se defamation, are jokes, or are rhetorical hyperbole. Some attorneys have tried to argue that it should be juries that decide the intent of a fact. But, this is where things get fuzzy. Is it a question of law or fact whether a defamatory statement was intended as a rhetorical hyperbole or is it up to the Juries. Up to now, the Courts have consistently ruled that it is a question of law and routinely make these determination at the pleading and summary judgment stage.

If plaintiff is unable to plead and establish defamation per se, then, plaintiff can still plead defamation “per quod” but actual damages must be proved when pursuing a defamation per quod case. Best practice is to plead, in separate counts, Defamation per Quod and Defamation per se, even for the same defamatory statement.

Defamation Per Quod is the most common type of defamation and it literally means Defamation “by reason of which”

Defamation per quod is not apparent on its face, and must be plead with a showing of actual damages.

In Florida, defamation per quod actions require an allegation and proof that the defamation precipitated an actual injury. Precipitated means that the defamation was the but for cause of injury.

Words in a per quod action means that they are not injurious on their face; when such is the case, Florida Law requires plaintiffs to use extrinsic evidence to support the defamatory nature. In cases of innuendo, extrinsic evidence must be supplied that “must be known in order to inflict an injury.” Id.

In Defamation per quod cases, Plaintiff must be able to proof some [E]vidence of some actual injury.

The type of injury can be anything, but it needs to be able to be quantifiable. For instance, if the injury involved loss of a job, then the loss of income from the job loss can suffice. If it is loss of reputation, then a showing of business loss is required.

The other type of damage recovery that is available in some case is injunctive relief where you ask the Court to order the defendant to take a statement down or to issue a retraction.

Injunctive relief may be sought at the onset of the case by filing an emergency motion for injunction relief.

To prevail in preliminary injunction, the plaintiff must establish the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law;(3) substantial likelihood of success on the merits; and (4) consideration of the public interest” As a general rule, a trial court has sound discretion to grant injunctions.

Ultimately, the Plaintiff is required to demonstrate facts that weigh heavily in favor of the issuance of a temporary injunction.

Now lets talk about the affirmative defenses

There are two main affirmative defenses which are unique to defamation:

The most common one is the affirmative defense that the statement is truthful.

What means truthful is a subject of many arguments:

Typically, the courts have defined a truthful statement as a statement which is substantially true if its substance or gist conveys essentially the same meaning that the truth would have conveyed. In making this determination, Courts will consider the context in which the statement is made and disregard any minor inaccuracies that do not affect the substance of the statement.”

The legal significance of the “gist” of a publication means that a defendant may be held liable even if defendant has the details right, but the gist wrong. The gist is always more important than having minor inaccuracies or minor facts wrong.

As far as the truth is concerned, if a statement is accurate, then it is not defamatory.

The next common type of affirmative defense is that the Statement was a statement of Opinion

Once again, defamation is a false statement of fact. For this reason, a statement of opinion cannot be defamatory. However, simply because you might phrase a statement as a statement of opinion does not automatically mean that it will be interpreted as a statement of opinion for purposes of defamation law.

Let us look at an example to see why this is so. Let’s say that Tom told someone, “I think that John beat up his girlfriend last Saturday,” and, as a result, John lost his job and most of his friends. Tom might say he was only giving his opinion because he qualified his statement with the word ‘I think’; Tom will argue that he didn’t say: “John beat up his girlfriend.” Tom qualified his statement.” But simply adding “I believe” or “I think” to an otherwise straightforward statement of fact does not necessarily make someone’s statement an opinion.

In a defamation lawsuit, the jury will be instructed to look at all of the circumstances surrounding the publication of the defamatory statement. Following our example above, how well Tom knew John knew the person that he made the alleged defamatory statement to, and how precise the allegedly defamatory publication was, are all relevant factors. But, the most important factor is why did John make the statement. For instance, if John and Tom work together and Tom’s motivation was to get John fired, then normally, the statement is more likely to be construed as a defamatory statement and not a statement of opinion.

In any event, the jury will be instructed to put all that context together. After combining all the context together, if a jury believes that John was really making a specific statement of fact and hiding it as a supposed statement of opinion, then John will be found liable for defamation.

Defamation cases also have two types of privileges we need to be discuss

First is the Absolute Privilege

Certain types of communications or publications are absolutely privileged. Absolute privilege means that the person making the statement has the absolute right to make that statement at that time, even if it is defamatory. In other words, the person making the defamatory statement is immune from a defamation claim.

In general, absolute privilege exempts persons from liability for potentially defamatory statements made:

during judicial proceedings
by high government officials
by legislators during legislative debates
during political broadcasts or speeches, and
between spouses.

Defamatory statements during judicial proceedings enjoy an absolute privilege. This includes allegations in pleadings, statements in motions, and testimony. Of course, if the testimony is false, then it is perjury, but it is not defamation.

The litigation privilege extends to Judges, attorneys, witnesses, and the parties so long as it directly part of the litigation proceeding. The Florida Supreme Court drew the line in a landmark case known as Delmonico v. Traynor, which is a 2013 Supreme Court opinion where the Court refused to extend the privilege to an attorney who had ex-parte communications with witnesses outside of the Court house.

There is a long history as to how judicial proceedings have enjoyed this privilege and that is because in a judicial proceeding, one has a judge who can strike a statement in a pleading or motion, can seal record, and can sanction accordingly.

High government officials also enjoy an absolute privilege when defaming each other, or when a person defames them. Think of all the potential lawsuits that could exist between Presidential candidates. Because these types of publications are protected by an absolute privilege, it is irrelevant the motivation or if extreme malice exists.

Florida has been liberal in construing what a high government official means. Meaning in extends coverage to most government officials. Although there is much debate as to affording absolute privilege across the board as to government employees, currently, Florida extends the absolute privilege to all government employees so long as they are acting within the course and scope of their government duties.

Legislators on the legislative floor also enjoy absolute immunity as to any defamatory statements uttered during debate of the bill, even if it directly defames an individual and even if it defames an individual with malice.

So it follows, that during a political broadcast, speeches, and political debates, an absolute privilege is enjoyed by the speaker.

Finally, defamatory statements from one spouse to another or about another spouse enjoys an absolute privilege. This privilege has developed as part of defamation due to Florida’s recognition of the spousal privilege as recognized under Florida Statute 90.504.

Qualified Privilege

Other types of communications are subject to what is called a qualified privilege, meaning that the person making the allegedly defamatory statement may have had some right to make that statement.

If a qualified privilege applies to a statement, it means that the person suing for defamation must prove that the person who made the defamatory statement acted intentionally, recklessly, or with malice, hatred, spite, ill will or resentment. In a qualified privilege scenario, the motivation of the individual publisher of the defamatory statement is what is most closely analyzed.

Some examples of statements which have a qualified privilege are:

statements made in governmental reports of official proceedings
citizen testimony during legislative proceedings
statements made in self-defense or to warn others about a harm or danger
certain types of statements made by a former employer to a potential employer regarding the employee, and
published book or film reviews that constitute fair criticism.

Important to add as to book publications is how the book or publication is marketed. If it is marketed as a factual biography of a person, then fictional elements to the factual biography could very well be actionable. But, as we often see, words like “based on a true story” with “some elements have been changed for dramatical purposes, are likely to be construed as qualified privileged.

Public figures are also covered by the qualified privilege.

If the plaintiff bringing a defamation claim is a public figure, he or she must also demonstrate with clear and convincing evidence “actual malice” by the person publishing the statement. The landmark case is the U.S. Supreme Court Case, New York Times Co. v. Sullivan, which, for the most part, remains the law of the land.

The General Facts of Sullivan are as follows

During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law.

When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. A jury in an Alabama state court awarded him $500,000 in damages. The state supreme court affirmed and the Times appealed.

The Supreme Court posed the following Question:

Did the libel law unconstitutionally infringe on the First Amendment’s freedom of speech and freedom of press protections?

The Court concluded: To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.

In the unanimous opinion, the Supreme Court ruled for the Times. When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity. Justice Brennan used the term “actual malice” to summarize this standard, although he did not intend the usual meaning of a malicious purpose. In libel law, “malice” had meant knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent.

A lot of issues and conflicting opinions have arisen since Sullivan as to what constitutes a public figure. The term “public figure” is defined to include those who “have assumed roles of special prominence in the affairs of society,” or who occupy “positions of such persuasive power and influence that they are deemed public figures for all purposes. Indeed, anyone that is famous will be deemed a public figure. Whether someone is famous is often highly litigated with different results across courts as the extent of one’s prominence in society affairs is a very discretionary concept.

In Florida, Employers also have a qualified privilege:

This is known as the employer review qualified privilege. In order to avoid defamation claims, some employers these days refuse to confirm any details about former employees other than their dates of employment, and job position. This is known as a neutral reference and we don’t want a former disgruntled employer to be giving false references about a former employee who is simply trying to work and be productive with a new employer. But from a societal perspective, a truthful reference concerning a legitimate issue concerning the former employer, can be valuable. For instance, if, the employer fired the employee for theft, a statement about that to a potential employer might qualify as a statement made to warn others about a harm or danger (i.e., the danger of hiring someone who might steal from you). Because references can provide a societal value, Florida has specifically codified the qualified privilege under Florida Statute 768.095 The statute states “An employer who discloses information about a former or current employee to a prospective employer of the former or current employee, upon request of the prospective employer or of the former or current employee, then such disclosure is immune from civil liability or its consequences unless it is shown by clear and convincing evidence that the information disclosed by the former or current employer was knowingly false or violated any civil right of the former or current employee protected under Florida Statute chapter 760, which are Florida anti-discrimination laws.

Utilizing the statute, the Courts have interpreted the law to create the following additional requirements:

That the Plaintiff Must prove by clear and convincing evidence that any statement made about Plaintiff by the Defendant to any prospective employer was knowingly false, deliberately misleading, or rendered with a malicious purpose.

The way I commonly see defamation cases play out is when a former employee applies for a new job. The potential new employer asks the employee who was his previous employer and asks if he can call the prior employer. Regardless of whether the employee gives permission, as part of the hiring process, the prospective new employer may call the prior employer.

Of course, the employee is normally not privy to the information exchanged. Normally, the only knowledge that the employee receives is whether he was hired for the job. If the employee is not hired, and the interview went well, the employee is left with a feeling that the former employer defamed him.

In defamation cases, as with most tort cases or intentional tort cases, the Plaintiff bears the burden to prove all the elements of the case. In the case of a former employer who may have said something negative or adverse about the employee, the employee bears the burden of proof to show, by a preponderance of the evidence the exact false statement which was communicated to the new employer. Normally, an employer who has not hired an employee does not want to be involved in litigation and it will be unusual for the prospective employer to disclose what the previous employer stated.

Next, lets talk about the rise of defamation claims in the Social Media Context. The number one client consult my firm I is nowadays getting are clients seeking advice as to how to address defamatory statements stated by third parties utilizing online boards, utube, facebook and the like.

We begin our discussion with the Federal Communications Decency Act which was passed by congress in 1996. Particularly relevant to us is Section 230 of the Act.

Section 230 of the Communications Decency Act grants interactive online services of all types, including blogs, forums, and listservs, broad immunity from tort liability so long as the information at issue is provided by a third party. The Act makes web sites such as Facebook, Glassdoor and Linked-In, immune from liability for false information which is provided by users. The Act shields the web site from false information which is posted by users of the site. Of course, the actual author of the publication bears personal liability for the information which he or she published, but the actual medium which is used, such as providing a text box, bulleting board, or publication access to the web site, does not place on the web site any responsibility or duty to ascertain whether the information is truthful, or weigh or address any harm which the publication is causing.

Moreover, because of these protections, the web sites have taken a firm stance on not taking anything down unless it violates their own personal policies, or otherwise, unless a Court specifically orders it.

I have gone down that rabbit hole. Let me tell you how that looks like:

I have been retained by clients to cause the removal of false information from the web site. Honestly, for me, it has been an ordeal. First, you can try sending out a letter asking the web site to take it down. I have done that numerous times, and provided evidence of the falsehood of the publication. Most of the times, I have been ignored. Some clients have nonetheless retained me to pursue the matter further, meaning, Carte Blanche to do whatever it takes.

When the letter did not work, the next step was to send a cease and desist letter to the actual person who published the false information. As is often the case with defamation cases, the publication is made out of anger and the author of the defamatory information may be unreasonable and fearless, meaning, not having much to lose. In my experience, it is seldom the case that a cease and desist letter will result in the defamatory content being taken down. Although a cease and desist letter is only required for media defendant, it is best practice to nonetheless give an opportunity to the publisher of the false information to take down the content. Your cease and desist letter to the publisher may very well be Exhibit number 1 to a Judge or Jury.

So, if the cease and desist letter does not work the next step is to file a lawsuit. The lawsuit can be filed wherever the publication was published and caused damages, or where the defendant resides. {This is unique to defamation cases} In web site publications, the publication and distribution of said publication is virtually world-wide. But, where the damages occurred is typically somewhere close to the Plaintiff’s location. Of course, you can always have jurisdiction where the defendant resides.

After the lawsuit is served, the Defendant has 20 days to file a responsive pleading. The best you can hope for is to have an attorney make an appearance. This tends to cause reasonable minds to prevail. In defending defamation, the defendant will incur significant attorney fees which usually results in an agreement to remove or correct the wrong information. Other times, an attorney is not involved, and the defendant, pro se will start filing stuff and does not follow the rules of procedures. These type of pro se defendants are difficult to deal with. Trial Courts tend to give a lot of procedural leeway and many opportunities to fix their discovery mistakes, including missing depositions, failing to provide discovery, and causing needless hearings and delays. A generous Court and a malevolent defendant could drag the case for years and cost your client tens of thousands to get to a judgment or to be successful in achieving injunctive relieve. The third possibility is when defendant ignores the lawsuit, and after a trial on damages, you finally achieve your judgment with a Florida order that says that the information must be taken down.

So, after the Judgment is achieved, the legal battles may just be beginning. Indeed, your hard earned judgment is only against the individual author. The next step is to sue the actual web site to have jurisdiction over the web site. In the case of Facebook, the lawsuit needs to be filed in California, including a count to domesticate your Judgement. If you are a Florida attorney and lack a license to practice law in California, like me, you will have to associate yourself with a California attorney to either handle the California proceedings or have you admitted, under their supervision, as pro hoc vice.

The litigation battles with some web sites will be intense. My experience with these popular web sites is that they stubbornly defend these cases so as not to set precedence that they are willing to entertain being forced to take down the content or open up the flood gates. Challenges will be made that a Florida Judge cannot tell a California company to take something down. Challenges will be made based on California public policy and State first amendment rights, and you could be relitigating certain aspects of defamation law and rearguing some of your facts to California law principals.

Even if you prevail on that, you can expect an adverse order against the web site to be appealed. All the while your client is calling, upset at the extraordinary expense he has incurred, and more importantly, the many years it is taking to achieve a result. Indeed, all these years, the false publication has continued to be published and may even be moot by this time.

The purpose in presenting all this is to give you a flavor of the practical consequences of pursuing defamation claims against individuals. As you can see, in addition to overcoming numerous legal issues, factual nuances, and contradictory evidence that is inherent in defamation cases, there is a practical element that should not be ignored, and, at a minimum, client expectations should be managed, and the practical possibilities should be fully discussed with the client prior to committing to full action.

In addition to the practical consideration we have just discussed, web site immunity cases carry another burden of complexity. This is known as the “mixed content web site cases.” Sometimes, web sites manage the content by editing the content, allowing others to edit the content or add to the content, or otherwise shape the content by submission forms or drop downs. An example of this is Wikipedia where they allow users to publish content, and then other users, or Wikipedia themselves, edits or adds content. When such is the case, the Courts, as a matter of law, are left to determine whether Wikipedia or similar web sites have interfered with the author’s publication enough to take the Web site outside of the civil protections afforded by the Communication Decency Act. Right now, we are seeing this battle taking place in Congress and in the media. On the one hand, some of the public demands accountability for false information which is disseminated through popular web sites. On the other hand, who is the arbiter of truth? The individual decisions these companies are making vary from company to company, but, if the web site company begins to interfere with the content, then the web site company may be waiving its immunity under the Communication Decency Act. This area of the law is rapidly evolving, but as of the date that this lecture was given, I am unaware of any Florida appellate court rulings which provide further guidance.

There is also a criminal law Florida Statute which makes defamation a crime.

Florida Statute 836.01 state: Any person convicted of the publication of a libel shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

I have not seen a criminal case that has utilized this statute. However, there are many practical uses of the statute in Civil Court including when the time comes to plead punitive damages. With the right set of facts, Florida Statute 836.01 can be used to meet the outrageousness elements when it comes time to move to add punitive damages to a complaint. Other uses include cases which include counts for conspiracy, extortion of the elderly and tortious interference. But if you think that an individual can simply call the police and have the police investigate a defamation case, good luck. Most of the time (if not all of the time), the police will point you to the Civil Court House.

I came close once when I represented a motel. A group of young adults where going up the east coast of Florida, staying at beach motels. After they stayed at the hotel, they would go to the owner or manager of the motels where they would tell manager that their room had roaches and that if they wouldn’t get comped, they would write negative reviews. When that happened to my client, my client refused, and in fact, 5 negative reviews went up.

Not willing to undergo the financial feasibility of pursuing a civil defamation per se case against the five individuals, my client opted to report the crime to the police utilizing this statute. Because these individuals were doing this to multiple hotel owners, I thought it had a chance. Unfortunately, police and prosecutor refused to press charges because it would be difficult to prove, beyond reasonable doubt that there were no roach infestations in any of the rooms.

The take away from this is that even though there is a criminal statute for defamation, the application of it is impractical, but it may provide side benefits in civil defamation arguments which may arise as part of the civil process.

Yet another area of Florida Defamation Law is the Media Defendant:

Under Florida’s defamation law, a prospective plaintiff is required to give a media defendant notice five days before initiating a civil action. This is codified in Florida Statute 770.01. The notice must specify the alleged false and defamatory statements contained in the article or broadcast. Id. Further, section 770.02, limits the amount of damages a plaintiff may recover where: (1) the statements were published in good faith; (2) the statements were false due to an honest mistake of facts; (3) there were reasonable grounds for believing the statements were true; and (4) a full and fair correction, apology, or retraction was published or broadcast within a specific time period. The Courts have interpreted these conditions to be necessary protections to ensure the delicate balance between preventing tortious injury resulting from defamatory statements and protecting the constitutional right to free speech.

The notice requirement is a condition precedent, meaning, failure to give the notice results in not being able to bring forth the claim. Further, Courts have given it a very strict construction including the fact that it cannot be cured after the lawsuit is filed. Meaning, even if the case is dismissed, and then, a proper notice is given, the case cannot be refiled.

A lot of litigation has also arisen as to what constitutes a media defendant. Of course, Newspaper publications, tv channels, and news commentary applies. Less obvious is what I like to call as quasi-media, such as bloggers, youtube personal channels, Facebook recurring postings, and other forms of internet media. Currently Courts are tending to rule that most people who disseminate information on a regular basis in any kind of structured format, is entitled to the media pre-notice requirement.

If a Court finds that the defendant is a media defendant, then, if Plaintiff failed to provide the notice letter, Defendant wins.

If the Court finds that the notice requirements of F.S. 770 have been met, then we need to see if a fair correction or retraction was published utilizing the same publication medium. For instance, if the defamatory publication was originally published in a newspaper, then the retraction must occur in the publication, in similar format. Taking it one level deeper, if the publication occurred in the Sunday circulation which has a broader audience, the retraction should also be published with the broader Sunday audience.

However, simply because a retraction occurs, it does not eliminate the liability of the Media defendant. The benefit to the defendant is simply the types of damages which would thereafter be recoverable. Punitive damages are eliminated, damages which can’t be quantified are eliminated. But, the Plaintiff can still proceed with its defamation claims and will need to prove actual damages in the same manner in which damages in per quod defamation cases need to be proven.

Other things to consider Considerations:

One is that Normally not covered by insurance, since it is an intentional tort. Also, most defamation occurs between individuals, so collecting a Judgment is oftentimes very difficult so your client should be made aware of those issues prior to significantly investing in the claim.

Also, a practice recommendation. When you decide to take a defamation case which will be litigated, look at the standard Jury instructions for defamation cases. Most experienced trial attorneys will be very familiar with the likely jury instructions the case may have. In the lecture materials, I have provided the Florida Standard Jury Instructions for defamation. This gives you a legal roadmap to your case. Of course, prior to trial the jury instructions have to be tailored to the specifics of the case, and, citing applicable case law, modify certain aspects of the standard defamation jury instructions to suit the specifics of the case.

In Conclusion, from this lecture, you should have been able to get a flavor as to the complexities of defamation, and help you identify the main issues that arise in defamation cases. Defamation law and legal interpretations are constantly changing, and this lecture is not intended to substitute sound legal advice based on the particular facts that are presented.

All the topics which I have covered today are also covered in the written materials of this lecture, and the materials reference the landmark cases which should be known to any attorney who chooses to practice in the area of Florida Defamation Law.

Well that concludes this lecture. If anyone taking this lecture has a Florida Defamation question, feel free to reach out to me via email: [email protected] or by phone: 321-953-5998.

Have a good day.

An Education primer on Defamation Law in Florida