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An Education primer on 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 5th 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.