MEMORANDUM OF LAW DISCUSSION – DEFAMATION LAW ON PUBLIC FIGURE
This memo is an in depth legal discussion concerning what constitutes a public figure, Florida’s Privacy Laws, and the causes of actions which may be available to a public figure or a quasi public figure when misleading or false statements are state or reproduced in a book or a movie.
The factual details of this memo has been redacted to protect the innocent. The purpose of this memo which was created by our law firm is to give guidance to people and attorneys as to the legal issues that may arise when defending or making claims under Defamation and Privacy Laws under Florida and Federal Laws.
- Temporary Injunctive Relieve
The elements for temporary injunctive relief are a) the likelihood of irreparable harm, b) the unavailability of an adequate remedy at law, c) a substantial likelihood of success on the merits, and d) the temporary injunction would serve the public interest. Additionally, Fla.R.Civ.P. 1.610(b) requires that the moving party post a bond as a condition of having the court enter a temporary injunction. Provident Mgmt. Corp. v. Treasure Island, 796 So. 2d 481, 485 (Fla. 2001). “St. Johns Inv. Management Co. v. Albaneze, 22 So. 3d 728 (Fla. 1st D.C.A. 2009).
“The single most important prerequisite for the issuance of a preliminary injunction [whether it be preventive or mandatory] is a demonstration that, if it is not granted, the applicant is likely to suffer irreparable harm before [the court can render] a decision on the merits.” Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir. 1985). The Claimant would plead that allowing such a publication to go through would defame and invade his privacy. Claimant needs to claim that the injury is peculiar in nature, one that money will not be able to fix at a later date. In Mullinix v. Mullinix, 182 So. 2d 268 (Fla. Dist. Ct. App. 4th Dist. 1966) the court held that an irreparable injury is that which is of a peculiar nature, for which compensation will not be enough. Respondent would argue that the harm is not irreparable due to the fact that many cases similar to Claimant have failed under invasion of privacy claims (i.e. Loft, Tyne, Valentine, Lane discussed infra). The courts have set the bar high for temporary injunctions. Also, the fact is that Claimant’s name has already been tarnished from previous lawsuits and incarceration, the court will find that if an injunction is to be issued it will be at the conclusion of the case and not before.
Claimant will claim that at present, there is no other remedy at law. The book is set to release June 9, 2015. Litigation is a lengthy process, and the injunction will preserve both parties’ interest. The court more than likely will agree, once a plaintiff’s right of privacy has been violated and defamed, his remedies are far more limited than injunctive relief prior to publication.
- THERE IS A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS
Claimant will claim there is a high likelihood of success on the merits of this case. Not only are there violations of privacy, defamation, and fraud, FTUPSA, Intentional Infliction of Emotional Distress, there are valid admissions and evidence, which would prove this case, has many strong components. However, very few cases are successful under a violation of the right of privacy due to strong First Amendment Protections and the expressive nature films and books receive.
- THE TEMPORARY INJUNCTION WOULD NOT BE ADVERSE TO THE PUBLIC INTEREST
Claimant will claim that an issuance of a temporary injunction would serve the public interest. By publication of the book, the public will receive incorrect information that would be construed as true about the United States Government. As per the advertisements posted, Respondent & Publishers are attempting to showcase the story that “turned up on the front page of the New York Times.” (Advertisement for Arms and the Dudes.) Respondent will claim that there is no public interest in this as it is a private matter regarding an expressive work of art. However, the court may agree that the way Defendants have attempted to portray the book would more than likely harm the public interest.
- A BOND WOULD BE REQUIRED TO BE POSTED UNDER FLA. R. CIV P 1.610(b).
Claimant will be required to post a bond for the preliminary injunction.
- CLAIMANT WILL BE ABLE TO GET AN INJUNCTION TO STOP PUBLICATION AT THE CONCLUSION OF THE LAWSUIT.
The elements needed to plead injunctive relief are a) irreparable injury will result if the injunction is not granted; b) there is no adequate remedy at law, c) the party has a clear legal right to the requested relief, d) the public interest will be served by the injunction Net First Nat. Bank v. First Telebanc Corp., 834 So.2d 944, 949 (Fla. 4th DCA 2003) and 5) the moving party also must have a clear legal right. Id. (citing In re Estate of Barsanti, 773 So.2d 1206, 1208 (Fla. 3d DCA 2000).
- IRREPARABLE HARM WILL OCCUR IF AN INJUNCTION IS NOT GRANTED POST SUIT
Allowing the continuation of dissemination of a defamatory publication full of fraudulent claims would further injure Claimant. Respondent will claim that since the publications have already been posted, no irreparable harm will occur in order to justify an injunction post suit. However, the court more than likely will agree just because one wrong has occurred, does not mean that the tort shall continue simply because the plaintiff has been injured once.
- THERE IS NO OTHER ADEQUATE REMEDY AT LAW DUE TO THE NATURE OF THE LAWSUIT.
Claimant will claim that at present, there is no other remedy at law. Respondent will claim that the other remedy at law is damages, as punitive and actual damages will be requested. The court more than likely will agree to post suit injunction, once a plaintiff’s right of privacy has been violated and defamed, his remedies are far more limited and simple monetary damages will not be enough to make the plaintiff whole.
- CLAIMANT HAS A CLEAR LEGAL RIGHT TO THE REQUESTED RELIEF AS HE HAS THE RIGHT NOT TO HAVE DEFAMATORY AND FRAUDULENT STATEMENTS AGAINST HIS NAME
The relief requested is to cease publication and to issue a statement correcting the facts. If at the conclusion, the court finds that Claimant’s rights have in fact been violated, Mr. Claimant will be entitled to this post suit injunction and damages.
- AN INJUNCTION WOULD NOT BE ADVERSE TO THE PUBLIC INTEREST
Claimant will claim that an issuance of a post- suit injunction would serve the public interest. Otherwise, the public would receive incorrect information that would be construed as true about the United States Government. Respondent will claim that there is no need to protect public interest by issuing an injunction, as the issue is a private matter regarding an expressive work of art. However, the court more than likely will agree, the way Defendants have attempted to portray the book would more than likely harm the public interest.
- THE MOVING PARTY DOES HAVE A CLEAR LEGAL RIGHT.
It is unequivocal that once a court decides in their favor, a claimant has the legal right to have their damages pursued. Thus, at the conclusion of the case, the court more than likely will find an injunction for Claimant. Also, the bar is lower for injunctions post suit.
- THE COURT WILL NOT ENTER A DECLARATIVE JUDGMENT PRE PUBLICATION
“The Declaratory Judgments Act, as stated in Chapter 87, Florida Statutes 1965 (now Chapter 86, F.S. 1967, F.S.A.), is to settle and to afford relief from insecurity and uncertainty with respect to rights, status and other equitable or legal relations; and the Act itself is to be liberally administered and construed.” Hialeah Race Course, Inc. v. Gulfstream Park Racing Assn., 210 So. 2d 750, 752–53 (Fla. 4th DCA 1968). All plead allegations must be taken as true. Id. Therefore, “ sustaining of the adequacy of the complaint only lays the foundation for the case to be heard upon its merits and does not connote a determination as to who should prevail. Id.
- THE COURT WILL NOT ENTER A DECLARATIVE JUDGMENT PRE PUBLICATION DESPITE THE SUFFICIENCY OF THE COMPLAINT.
“The test of sufficiency of a complaint is whether the plaintiff is entitled to a declaration of rights at all.” 9 Fla. Jur., Declaratory Actions, s 47. Respondent will claim that the suit is so entangled; declarative rights will not be able to be entered. The court, based on previous case law, will not likely enter a declarative judgment as the case relies on many exceptions to the general rule, and will likely be litigated heavily.
- Available Claims of Invasion of Privacy
Florida has traditionally recognized the four general categories Prosser in The Law of Torts § 117 (4th ed. 1971) p. 804-14 set out as: 1) Intrusion Upon Seclusion of Another, i.e. invading plaintiffs’ physical solitude or seclusion, 2) Public Disclosure of private Facts, 3) False Light in the Public Eye, and 4) Appropriation, i.e. commercial exploitation of the property value of one’s name. Agency for Health Care Admin. V. Associated Industries of Fla., Inc. 678 SO. 2d 1239, 1252 n. 20 (Fla. 1996) (citing Forsberg v. House. Auth. Of Miami Beach, 455 SO. 2d 373 (Fla. 1984)., Allstate Ins. Co. v. Ginsberg, 863 So.2d 156, 160-61 (Fla. 2003).
- THERE WAS A VIOLATION OF PRIVACY BASED UPON INTRUSION UPON SECLUSION.
To bring this cause of action, there must be 3 elements: a) there must be a private quarter, b) there must be some physical or electronic intrusion into that private quarter, and c) the intrusion must be highly offensive to a reasonable person. Oppenheim v. I.C. Sys., Inc., 695 F. Supp. 2d 1303, 1308 (M.D. Fla. 2010) (citing to Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156,162 (Fla. 2003).
- THERE WAS A PRIVATE THOUGHT OF CLAIMANT’S LIFE.
Claimant will claim that his case is analogous to Melvin v. Reid. A case cited to very often, Cason v. Baskin, 20 SO.2d 243 (Fla. 1945) cites to a decision in California: Melvin v. Reid. In this case, Melvin had been tried and acquitted of murder. After being completely rehabilitated, a producer told the true story of Melvin’s past life. Her friends abandoned her and brought upon her serious mental and physical suffering. Melvin was permitted recovery. Respondent will claim that because Claimant was once a public figure due to his Rolling Stones Article and the nature of the work he did, he cannot claim that his story is private. However, the court more than likely will conclude that because Claimant has since rehabilitated himself, his story is similar to Melvin v. Reid and find that his story is now private.
- THERE WAS SOME SORT OF INTRUSION INTO THAT PRIVATE QUARTER
Allstate Ins. Co, v. Ginsberg, 863 So. 2d 156 (Fla. 2003) states “This is a tort in which the focus is the right of a private person to be free from public gaze.” Claimant will claim the fact that a book is being published is that intrusion into seclusion. This is largely an uncontested element because publication of such facts is an obvious intrusion.
- THE INTRUSION WOULD OFFEND A REASONABLE PERSON.
To support this claim, the underlying conduct must be “so outrageous in character,” and “so extreme in damage” as to “go beyond all possible bounds of decency.” Id. Courts consider this the threshold question. Stasiak v. Kingswood Co-op, Inc., No. 8:11-cv-1828-T-33MAP, 2012 WL 527537, at *2 (M.D. Fla. Feb. 17, 2012). Claimant will claim publication of the book is offensive, as his life story should not be put on display. Respondent may claim that the story was not offensive before in the Rolling Stone Article, thus it should not be considered offensive now. Cason v. Baskin states, “Books, although less timely than newspapers or magazines, frequently contain material of such immediate public concern that the right of privacy is inapplicable. However, the unauthorized use of one’s name in a book of fiction may be actionable.” We can counter with the actual Cason case. In Cason, the plaintiff was a character in Rawlings’ book. While the Florida Supreme Court held there was a cause of action for invasion of privacy, the action was reversed because there was no finding of damages. The court could not find a claim for damages when the plaintiff was suing for a portion of the books proceeds. In the present case at issue, Claimant’s life is the reason the book exists. Also, unlike Cason, Claimant is not claiming a portion of the proceeds. The court more than likely will find that falsities of one’s life story put on public display is enough to go beyond all possible bounds of decency and would offend a reasonable person who was attempting to start their life again.
- THERE IS A VALID CLAIM OF ACTION FOR PUBLIC DISCLOSURE OF PRIVATE FACTS
The elements are a) publication, b) of private facts, c) that are offensive, and d) are not of public concern. Cape Publ’n, Inc. v. Hitchner, 549 So. 2d 1374, 1377 (Fla. 1989). See also Heath v. Playboy Enter, Inc. 732 F. Supp. 1145 (S.D. Fla. 1990)
- PUBLICATION IS AN UNCONTROVERSIAL ELEMENT AS THE BOOK IS TO BE DISSEMINATED ON JULY 9, 2015.
This is a nonissue by the fact that a book is set for publication and there are already advertisements out on it.
- PRIVATE FACTS ABOUT CLAIMANT’S LIFE HAVE BEEN DISSEMINATED TO THE PUBLIC.
Mr. Claimant will bring attention to Melvin case referenced supra by Cason. (Melvin v. Reid. In that case, the plaintiff was permitted to recover. A plaintiff had been tried and acquitted of murder. After being completely rehabilitated, a producer told the true story of her past life. Her friends abandoned her and brought upon her serious mental and physical suffering. ) Respondent may bring up the case Heath v. Playboy Enter, Inc. 732 F. Supp. 1145 (S.D> Fla. 1990) There a plaintiff was the guardian for a minor child. The defendant had published a picture with an account of the plaintiff’s paternity. The court dismissed the action because the photograph was taken in a public place and the information was acquired legally. However, our client’s issue is directly different. The information Respondent seeks to publish is either unknown, made-up, or false (as evidenced by the title). The court more than likely will rule that this case is more analogous to Melvin v. Reid and find that the private facts have in fact been disseminated.
- THE FACTS ARE OFFENSIVE
- THE FACTS OF THE CASE ARE NOT OF PUBLIC CONCERN BASED UPON CASE LAW OF MELVIN V. REID
Claimant’s life story, albeit a false version of his life story, is not for public viewing. Respondent may cite to Publ’n, Inc. v. Hitchner 549 So. 2d 1374 (Fla. 1989). In that case the Respondents were charged with aggravated child abuse. The reporter published statements and did not comment on the confidentiality of anything in the file but did cover the actual trial. The reporter also interviewed the child who made statements that her parents forced to consume hot peppers. The court dismissed the action because the defendant was “printing what is believed to be facts brought out at trial in an effort to hold up the public what is considered to be a questionable judicial determination. It was not attempting to sensationalize a private nongovernment matter.” Respondent is attempting to sensationalize a private nongovernment matter. Claimant has already had a trial and served his time. His life does not need to be retold again. Mr. Claimant will bring attention to Melvin case referenced supra by Cason.
- CLAIMANT MAY CLAIM AN EXCEPTION TO THE DELETION OF FALSE LIGHT
Prosser has defined False light as one that “consists of publicity that places the plaintiff in a false light in the public eye.” Jews for Jesus Inc. v Rapp, 997 So.2d 1098, (2008) (citing William L. Prosser, Privacy, 48 Cal. L.Rev. 383 (1960). However, in Jews for Jesus, the Supreme Court held it would no longer recognize a claim of action for false light as “it substantially overlaps with another tort, defamation” and defamation by implication and has the potential to chill free speech. Id. Nevertheless, in coming to this decision, the court expressed “this Court can recognize new common law causes of action where that recognition is neither in conflict with contrary legislation nor outweighed by any competing interests. Further the court states “if there is a unique interest that could be protected by false light, that certainly might be no reason for deciding to recognize the tort.” In fact, under the rejection of false light, the court discusses one of the few scenarios where defamation is inadequate and only false light would provide a potential relief. This example is: “A is a war hero, distinguished for bravery in a famous battle. B makes and exhibits a motion picture concerning A’s life, in which he inserts a detailed narrative of a fictitious private life attributed to A, including a non-existent romance with a girl. B knows this matter to be false. Although A is not defamed by the motion picture, B is subject to liability to him for invasion of privacy.” It is arguable that the court still left the tort of False Light open for the small example it outlined in which there was no relief except in a false light claim. The argument is that the court simply took out the element that was duplicative, but left it for the claim it specifically pointed to. Another case to point to, recognizing that false light may not be completed abolished in Florida law is Anderson v. Gannett Company 994 So.2d 1048 (Fla. 2008). The Florida Supreme Court issued the case the very same day as Jews v. RAPP. In that case the court state there were simply refusing to adopt false light rather than abolishing it.
- CLAIMANT HAS STRONG CLAIMS OF ACTION UNDER HIS STATUTORY AND COMMON LAW RIGHT OF MISSAPPROPIATION /RIGHT OF PUBLICITY
Under Florida law, there are two systems of right of publicity, a statute, and a common law right. Facchina v. Mutual Benefits Corp. 35 SO. 2d 499 (Fla. 4th Dist. Ct. Ap. 1999)
- CLAIMANT MAY CLAIM THE ELEMENTS OF MISAPPRORIATION UNDER HIS STATUTORY RIGHT:
i. CLAIMANT MAY BE ABLE TO ESTABLISH THE ELEMENTS FOR A CLAIM OF MISAPPROPRIATION BASED ON HIS NAME AND LIKENESS USED FOR ADVERTISING.
The claim of misappropriation is defined under Fla. Stat. § 540.08. It states that “no personal shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the name, portrait, photograph, or other likeness of any natural person without the express written or oral consent to such use given by.
A. WHILE THE COURT MAY FIND THE DEALINGS WERE OF PUBLIC INTEREST A FEW YEARS AGO, THE COURT WILL LIKELY RULE THAT LIKE CASON V. BASKIN, THE FACTS OF CLAIMANT’S LIFE ARE NO LONGER OF PUBLIC INTEREST
The exception to Fla. Stat § 540.08 states the statute does not apply in the case of any book, which is published as part of a bona fide news report or presentation having a current and legitimate public interest. In Loft v. Fuller, 408 SO.2d 619 (Fla. Dist. Ct. App. 1981), the plaintiffs, relatives of a deceased husband and father, brought claims for invasion of privacy and intentional infliction of emotional distress. A plane crash occurred, with the plaintiff’s family member as captain. Following the crash, there were investigations and extensive reports followed by a book and a movie with Robert Loft appearing as the ghost. The court held that because common law invasion of privacy is strictly personal, the plaintiffs were unable to bring the action for a dead man. Further, the court decided that “the statute does not apply in the case of any book which is published as part of a bona fide news report or presentation having a current and legitimate public interest… were the rule otherwise, it would have an unconstitutional “chilling” effect upon First Amendment freedoms of speech and press.” It should be noted that the court in Loft did outline an exception. The court stated, “the statute specifically exempts from its proscription the publication of any matter having a current and legitimate public interest UNLESS such publication amounts to a direct advertisement of the publisher’s product.” The court denied that the family could find that the exception occurred in Loft. The court stated that while “we agree that at least one of the purposes of the author and publisher in releasing the publication in question was to make money through sales of copies of the book and that such a publication is commercial in that sense, this is no way distinguishes this book from almost all other books, magazines or newspapers and simply does not amount to the kind of commercial exploitation prohibited by the statute.
The court more than likely will find the case is more analogous to Melvin v. Reid (as discussed supra.) Further, the court will understand that Claimant’s name was used explicitly for the purpose of advertising and marketing for the book and the movie.
B. CLAIMANT MAY CLAIM A VIOLATION OF MISAPPROPRIATION BECAUSE THE ADVERTISEMENTS USE CLAIMANT’S NAME AND LIKENESS TO PROMOTE THE PRODUCT
In Tyne v. Time Warner Entertainment, 901 So.2d 802 (Fla. 2005), decedents sued Time Warner under Florida’s commercial misappropriation statute and common law false light invasion of privacy. In the movie, The Perfect Storm, the plaintiffs argued that they made their father seem different than he really was without their permission. However, the plaintiffs in their argument claimed that Tyne was different because the defendants took liberties in their case, which were not taken in Loft. The court held the term commercial purpose does not apply to publications, including motion pictures, which do not directly promote a product or service. They also approved Loft’s construction of section. Loft stated that the statute does not apply in the case of any book, which is published as part of a bona fide news report or presentation having a current and legitimate public interest. In this case, in the actual advertisement as discussed Supra contains many instances when Claimant’s name and likeness were used to promote the book and movie. While the court more than likely will conclude that Respondent’s book is in fact an expression, it is arguable that he is using the likeness to promote the product of the book itself.
C. CLAIMANT WILL BE ABLE TO PROVE HIS CLAIM FOR APPROPRIATION BECAUSE HIS IMAGE AND LIKENESS WERE ASSOCIATED WITH A PRODUCT AND BECAUSE CLAIMANT’S STORY IS WHAT IS THE ATTRACTION OF THE ACTUAL BOOK
In Lane v. MRA Holdings, LLC 242 F. Supp. 2d 1205 (MD 2002), Plaintiff Veronica Lane bared herself for a camera in which she thought the primary purpose was for the camera man’s personal use, not for Girls Gone Wild. The court concluded that the use of another’s identity in a novel, play, or motion picture is not ordinarily an infringement unless the name or likeness is used solely to attract attention to a work that is not related to the identified person. While the court concluded that Lane’s images and likeness were used to sell copies of Girls Gone Wild, her image and likeness were never associated with a product or services related to that work.” Further, the court concluded that Lane never endorsed or promoted the product, but rather, as part of an expressive work in which she voluntarily participated. However, Lane consented to be filmed. While Respondent will claim this story is more like Lane, Claimant will claim his case is more analogous to Gritzke v. M.R.A. Holdings, LLC. 2002 WL 32107540 (N.D. Fla. Mar. 15, 2002). There a college student was photographed and videotaped exposing herself at Mardi Gras in Louisiana. Her picture was then used to market for a Girls Gone Wild video without her permission. The court ruled this case was different than Lane because the plaintiff was featured in the defendant’s marketing materials. Presently our case is exactly what is at issue. Claimant’s life story is what is advertised to promote the book.
- CLAIMANT MAY MAKE A CLAIM FOR HIS COMMON LAW RIGHT OF PUBLICITY.
The common law right of publicity allows any individual to sue and protect himself from having his name or likeness exploited during his or her lifetime. Gridiron v. National Football League Player’s Assn’n. 106 F. Supp.2d 1309 (S.D. Fla. 2000). “Nothing so exclusively belongs to a man or is so personal and valuable to him as his name, inasmuch as his reputation and the character he has built up are inseparably connected with it.” Battaglia v. Adams 164 SO. 2d 195 (Fla. 1964) Similarly to the statutory right of publicity, a violation occurs when a person’s name or likeness is used without his or her consent for a value conferred upon the defendant. Agency for Health Care Administration v. Associated Industries of Florida, Inc. 678 SO. 2d 1239 (Fla. 1996). Under the common law, a plaintiff need not prove actual harm or damage. Zim v. Western Publishing. Respondent may claim that there is an exception for news reporting and allow publisher and distributors to use an individuals name. Zim v. Western Publishing CO. 573 F.2d 1318. However, this is not so in this case. The court has also recognized there is a zone of privacy for sensitive personal matters. Doe v. Univision Television Group, Inc., 717 So. 2d at 65. It is arguable this is one of those sensitive matters. Claimant’s life story is not of public interest. Further, this case is more analogous to Melvin v. Reid where whatever public interest of the story there was, the public interest is now gone, years later.
Respondent may then claim consent is a bar to a violation of this right. It may seem through emails that Claimant contracted with Respondent to write his life. However, Respondent far exceed his scope. Further, Respondent breached his contract and completed the book without having a complete account of the story, as Claimant wanted Respondent to wait until Claimant’s criminal proceedings were over. This case is analogous to Zim v. w Publig Co. In Zim v. W.Publ’g Co., 753 F.2d 1318 (5th Cir. 1978) (applying FL law), the court found that the plaintiff was able to sue defendant publisher for unauthorized and tortious misappropriation of name because the parties had only contracted for defendant to use plaintiff’s name in one book. The subsequent book was not agreed upon and thus misappropriated and tortious.
Respondent may further claim that whatever information they gathered, they gathered from the trial or from authorized information sources. However, this is not true. Claimant may rely on Coton. In Coton v. Televised Visual x-Ography, Inc.740 F. Supp. 2d 1299 (M.D. Fla. 2010) the plaintiff sued defendants for taking a self-portrait and placing it on a pornographic movie. The company claimed they took the photo from an authorized website. The court ruled for plaintiff as there was harm to her professional reputation and her statutory misappropriation claim and her defamation by implication claim were recognized.
- A TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIP CLAIM WILL FAIL FOR WANT OF DAMAGES
The elements of a cause of action based on tortious interference with a business relationship are a) the existence of a business relationship, b) the defendant’s knowledge of the relationship, c) the defendant’s intentional and unjustified interference with the relationship and d) damage to the plaintiff as a result of the breach of the relationship. Kenniasty v. Bionetics Corp., 82 So. 3d 1071, 1074 (Fla. Dist. Ct. App. 2011)
A. THERE IS A CURRENT BUSINESS RELATIONSHIP FOR CLAIMANT’S ARMS DEALING BUSINESS, RELATIONSHIP WITH ONLINE GUN BOARDS, AND RELATIONSHIP WITH THE PROSECUTOR
The court in United Yacht Brokers v. Gillespie, 377 So.2d 668 (Fla. 1979) held that an action under intentional interference may still move forward even if the agreement is unenforceable or void if a jury could find the parties would have completed the transaction but for the defendant’s interference. Claimant will claim that he has an existing business relationship with the government as he still has assets to sell. Respondent will claim that just because he has asset to sell, Claimant cannot make a claim for tortious interference. Simply offering to sell, will not allow a claim for intentional interference. Further, “there is no cause of action with a business’ relation to the community at large.” Southern Alliance Corp. v. Winter Haven, 505 So.2d 489, 496 (Fla. 2d DCA 1987). Also past relationships with past customers has no basis for a tortious interference claim either. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812 (Fla. 1994). However, the court more than likely will conclude there is a current business relationship as defined by United Yacht Brokers v. Gillespie.
Claimant will claim that he has an existing relationship with the online gun boards (such as subguns.com). Like the relationship with the government, the court will rule similarly that Claimant does in fact have an existing relationship with the online community. Claimant also had a relationship with the prosecution. Claimant was “paying” for his previous actions with the government.
B. RESPONDENT HAD KNOWLEDGE OF MR. CLAIMANT’S BUSINESS RELATIONSHIP AS HE HAD DEVOTED SUFFICIENT TIME TO LEARNING EVERYTHING IN CLAIMANT’S LIFE.
This is more than likely an unconverted element. Claimant will claim that not only did Respondent interview and try to gleam knowledge from everyone in Claimant’s life, Respondent also spoke to associates of the business.
- A CLAIM OF FRAUD WILL NOT SUCCEED UNLESS MR. CLAIMANT WILL BE ABLE TO PROVE DAMAGES
The elements of a fraud claim are: a) a false representation of fact, known by the party making it to be false at the time it was made, b) that the representation was made for the purpose of inducing another to act in reliance on it, c) actual reliance on the representation, and d) resulting damage to the plaintiff. Huffsetter v. Our Home Life Ins. Co. 67 Fla. 324, 65 So. I (1914).
A CLAIM OF FDUPTA AS ADDING IS A LACK OF CAUSATION BETWEEN THE DECEPTIVE ACT AND DAMAGES TO THE CONSUMER AND THERE ARE NO DAMAGES
The elements of a claim under the Federal Trade Commission Act defined by §§501.202, 501 are a) a deceptive act or unfair practice, b) causation, and c) actual damages. Bookworld Trade, Inc. v. Daughters of St. Paul, Inc.,. 2007 WL 4124351 (M.D. Fla. Nov. 16, 2007); Gen Motors Acceptance Corp. v. Laesser, 718 So.2d 276, 277 (Fla. 4th DCA 1979). This section only provides for “actual damages” §§ 501.201. The purpose of FDUTPA is “to protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair practices in the conduct of any trade or commerce” §§501.202(2), Fla. Sta (2005). A deceptive practice is one which would “likely to mislead” consumers. Davis v. Powertel, Inc. 776 SO.2d 971, 974 (Fla. 1st DCA 2000). FDUPTA allow for both declaratory and injunctive relief for damages, actual damages plus attorney’s fees and court costs. §501.2105. However, fees and costs may not be recovered by a retailer who has in good faith, engaged in the dissemination of claims of a manufacturer or wholesalers without actual knowledge of violation of statute. §501.211(2). “The measure of actual damages is the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties.” Rollins, Inc. v. Heller 454 SO.2d 580, 585 (Fla. 3d DCA 1984) (quoting from Raye v. Fred Oakley Motors, Inc. 646 S.W.2d 288,290) (Tex.App.1983). Furthermore, §501.211(2)(2012) allows recovery “for a person who has suffered a loss as a result of a violation of this part” for actual damages. Thus, the act is not only limited to consumers. A single act may be the basis for a cause of action, the plaintiff need not prove a public injury or a pattern. PNR, Inc. v. Beacon Property Management Inc., 842 So. 2d 773,77 (Fla 2003). In Davis, the court held the statute broadly provides for “anyone aggrieved by a violation”. While it is arguable that the case N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So. 2d 672 (Fla. 3d D.C.A. 2000) found that declaratory and injunctive relief was not appropriate because a travel agency was not a consumer, it failed to consider the language “anyone aggrieved.”
- ADDING FICTIONAL ELEMENTS TO A STORY OR MOVIE THAT IS STATED TO BE A TRUE STORY IS A DECEPTIVE ACT
Claimant will argue that the laws of FDUPTA should apply as the book and the movie are attempting to dupe consumers into believing they are telling a real life story, free from the frivolities of artists. However, Respondent more than likely will argue that FDUPTA claims are usually not applied to situations like this.
- THERE IS NO CAUSATION BETWEEN THE DECEPTIVE ACT AND DAMAGES
The deceptive act is what caused damages to Claimant. Respondent will argue that the consumer, the movie viewers or readers are the ones who would have standing under this statute, not Claimant. Respondent will argue that despite the fact the suit does not need to be brought by a consumer, the consumer must still be the one to suffer damages.
- THERE IS AN ACTION UNDER INTENTIONAL INFLICTION OF EMTIONAL DISTRESS
To find a cause of action we would have to conclude that these allegations constitute “conduct exceeding all bounds which could be tolerated, of a nature especially calculated to cause mental damage of a very serious kind.” Loft quoting Slocum v. Food Fair Stores of Florida, 100 So.2d 396, 397 (Fla. 1958) quoting Prosser, Mental Suffering, 37 Mich.L.R. 889. The elements are: a) deliberate or reckless infliction of mental suffering, b) outrageous conduct, c) the conduct caused the emotional distress, d) the distress was severe, and e) the conduct must be so outrageous in character and so extreme that it is considered atrocious. Thomas v. Hosp. Bd. Of Dir. Of Lee County 41 So.2d 246, 256 (Fla. Dist. Ct. App. 2010).
- THERE WAS A DELIBERATE ACT OF TELLING THE STORY.
In Coton v. Televised Visual x-Ography Inc., (as referenced supra), the court found that the there was no intentional infliction of emotional distress because there was no evidence which showed the defendants acted outrageously. But this is completely different from the issue at hand. In contrast, in Coton, the defendants simply thought they had taken a photo from an authorized website. Here, Respondent had direct knowledge. There are even emails proving that Respondent knew what he said was false stating that the last thing Respondent needed was for Claimant to show his story was false.
- THE CONDUCT WAS OUTRAGEOUS
While Respondent may claim that the conduct was not outrageous, they were simply creating an expressive piece of work, Claimant will claim the conduct was in fact outrageous. Creating a work of art that reflects directly on his life story while fictionalizing key parts as to defame him is outrageous conduct. The court will agree with Claimant.
- THE CONDUCT ACTUALLY CAUSED CLAIMANT’S EMOTIONAL DISTRESS.
Claimant will argue that the conduct caused him distress over the plight of his name, his business dealings, and how he is represented in the community. Respondent may claim that this is not true because of Claimant’s background.
- THE DISTRESS OF CLAIMANT WAS SEVERE
Respondent may claim that there is no severe emotional distress, Claimant will claim it is severe. More facts will be needed to show Claimant’s distress but with a showing of evidence, this should be a noncontroversial issue.
- THE CONDUCT WAS OUTRAGEOUS.
The Florida appellate courts have stated the test to state a claim for IIED as follows: “[An IIED] case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Food Fair, Inc. v. Anderson, 382 So. 2d 150, 153 (Fla. 5th DCA 1980). It is most certain to defame someone and put their life story with drastic changes on view for the public to see.
Defamation is separated into three categories: 1) Defamation per Quod, 2) Defamation per Se, and 3) Defamation by Implication.
- UNLESS DAMAGE IS PROVEN, AN ACTION FOR DEFMATION PER QUOD WILL FAIL FOR WANT OF DAMAGES
A claim of action for Defamation has the following elements: a) Publication, b) Falsity, c) Actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person, d) actual damages, and e) statement must be defamatory. Restatement (Second) of Torts §§ 558B, 580A-580B. Jews for Jesus v. RAPP.
THE DEFAMATORY STATEMENTS WERE PUBLICIZED
THE DEFAMATORY STATEMENTS WERE FALSE
RESPONDENT ACTED WITH RECKLESS DISREGARD ON THE FALSITY OF THE MATTER
If a defendant knew or should have known the statements were false or defamatory, a court could not conclude they did not meet the requisite amount of fault of a showing of negligence against a private person. In terms of a public person, knowledge of falsity or reckless disregard of the truth will be enough of a fault requirement. Gertz v. Robert Welch, Inc. 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Presently, it is arguable that Claimant has retained private status after rehabilitating his life to a productive member of society. However, even this showing is unnecessary. Even if it is assumed that Claimant is seen as a public figure, Respondent acted with a showing of malice. THERE ARE NO DAMAGES FOUND
A cause of action with want of “actual damage” will fail under Florida law. Edelstein v. WFTV, Inc., Inc. 798 So.2d 797, 798 (Fla 4th DCA 2001). Claimant will claim that the book defamed him. However, without any proof, this element will fail.
- THE STATEMENTS ARE CONSIDERED DEFAMATORY
“A statement may be considered defamatory if it “prejudices” the plaintiff in the eyes of a “substantial and respectable minority of the community” as set forth in comment (e) of the Restatement (Second) of Torts § 559 (1972). “ Jews for Jesus. Additionally, “words are defamatory if they charge a person with an infamous crime to tend to subject one to hatred, distrust, ridicule, contempt, or disagree or tend to injure one in one’s business or profession.” Seropian v. Forman, 652 SO.2d 490, 495 (Fla 4th DCA, 1995). These statements made by Respondent do just that- they intent to subject Claimant to mistrust and ridicule by changing fictionalizing his story. Respondent will argue that the statements are Claimant’s life and if his life puts him at ridicule, Respondent should not be penalized for such things.
- CLAIMANT WILL SUCEED ON A DEFEMATION PER SE CASE
General damages are conclusively presumed to result from defamation per se and that “special damages need not be shown to sustain the action.” “But when the claim is defamation per se, liability itself creates a conclusive legal presumption of loss or damage and is alone sufficient for the jury to consider punitive damages.”Commander, 156 So. at 341; see also Bobenhausen v. Cassat Ave. Mobile Homes, 344 So.2d 279, 281 (Fla.1st DCA 1977), cert. discharged, 363 So.2d 1065 (Fla.1978 Lawnwood Medical Center Inc. v. Sadow, 43 So. 3d 710, 729 (Fla. 4th DCA 2010). A statement alleging someone has committed a serious crime Scott v. Busch 907 So.2d 662 (Fla. Dist. Ct. App. 2005). “Communication that imputes to another conduct, characteristic, or condition income partible with the proper exercise of his lawful business, trade, profession or office is slander per se.” NITV, LLC v. Baker 61 SO. 3d 1249 (Fla. Dist. Ct. App. 2011). “Defense may claim there is no longer a libel per se action against media Gertz v. Robert Welch, Inc. 418 U.S. 323. However, Mid-Florida Television Corp v. Boyles 467 So.2d 282 *1985) held that libel per se is still actionable. In this case, Claimant will argue that both he has been further accused of more illegal activities and that his trade or profession incurred many other unauthorized exercises of business. “In Florida, a single publication gives rise to a single cause of action,” and “the various injuries resulting from it are merely items of damage arising from the same wrong.” Callaway Land & Cattle CO. v. Banyon Lakes C. Corp. 831 So.2d 204, 208 *Fla. Dist. Ct. App. 2002) (citing Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607 (Fla. Dist. Ct. App. 1975).
- CLAIMANT WILL SUCEED IN A DEFEMATION BY IMPLICATION ACTION
Jews for Jesus (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 116, at all 117 (5th ed. Supp1998(). Held that in concluding false light is a duplicative of an existing tort and within the confines of First Amendment protections, the court concluded Florida recognizes Defamation by Implication. Defamation by implication arises, not from what is stated, but from what is implied when a defendant a) juxtaposes a series of facts so as to imply a defamatory connection between them, or b) creates a defamatory implication by omitting facts [such that] he may be held responsible for the defamatory implication. This case is very similar to Mohr v. Grant, 153 Wash.2d 812, 108 P.3d 768 In Coton v. Televised Visual x-Ography, Inc.740 F. Supp. 2d 1299 (M.D. Fla. 2010). In that case, the plaintiff sued defendants for taking a self-portrait and placing it on a pornographic movie. The company claimed they took the photo from an authorized website. The court granted for plaintiff as harm to her professional reputation and her statutory misappropriation claim and her defamation by implication claim. Presently, Claimant may have authorized some information to use to Respondent, but not for Respondent to fictionalize a story. The court will agree that the fictionalization of certain elements defames Claimant by implication because it juxtaposes a series of facts such as the number of individuals who were responsible for the business.
- PUBLIC FIGURE DEFENSES WILL BE ABLE TO BE OVERCOME
Claimant is no longer a public figure (Referring to Melvin v. Reid) and if he is seen as one, then malice can be construed specifically from a statement.
10. Overcoming First Amendment Defenses
The various first amendment defenses: a) Unconstitutional prior restraint, b) the subject matter at bar is a work of artistic expression, c) Publication of newsworthy facts, d)Public information (court documents) and e) Incidental advertising use.
- THE COURT WILL RULE THAT PRE PUBLICATION AN INJUNCTION WOULD AMOUNT TO AN UNCONSTIONAL PRIOR RESTRAINT HOWEVER POST SUIT, THE INJUNCTION WILL BE OBTAINABLE BECAUSE OF INVASION OF PRIVACY
Respondent will likely argue that granting the injunction pre publication would amount to an unconstitutional prior restraint. An unconstitutional prior restraint on free speech has a very heavy burden to meet. Neb. Press Assn., 427 U.S at 559. Past precedence indicates that when the Supreme Court has been called on to consider whether free exercise of speech under the first amendment may be curtailed in order to protect private rights, it has held in favor of free speech. The proponent of the injunction has to establish that an actionable invasion of privacy is likely to occur because the publication would be highly offensive to a reasonable person. Wolfson v. Lewis 924 F. Supp. 1413. In a leading Supreme Court Case, prior restraint may be justified in “ exceptional cases” such as maintaining the secrecy of troop movements in wartime. The court emphasized that its holding did not address the “authority to prevent publications to protect private rights according to principles of equity. Florida Star v. B.J.F 491 U.S. 524,541 (1989) (The court decline to hold that there is no zone of privacy within which the state may protect the individual from intrusion by the press). Florida Star 491 U.S. at 530-33 (first amendment yields only to state interest of the highest order)
- THE COURT WILL AGREE THAT THIS IS NOT SIMPLY AN ARTISTIC EXPRESION BUT A DEPICTION OF CLAIMANT’S LIKENESS NOT ONLY FOR THE PRODUCT BUT IN ADVERTISEMENTS
Respondent will likely argue that the first amendment provides greater protection to works of artistic expression: such as movies, plays, and songs than Claimant’s right to protect his privacy. However, Claimant has a strong argument in saying that the novel is not at all a creative work. That the novel is not transformative as it is not written as a fiction novel but as a biography, a depiction of his likeness. As a general matter, you will not be held liable for using someone’s name or likeness in a creative, entertaining, or artistic work that is transformative, meaning that you add some substantial creative element over and above the mere depiction of the person. In other words, the First Amendment ordinarily protects you if you use someone’s name or likeness to create something new that is recognizably your own, rather than something that just evokes and exploits the person’s identity. The defense will argue that the work is transformative since the author used his writing skills to write the book. Further, mere facts are not protected by law. In Comedy III Prods., Inc. v. Gary Saderup Inc. , 21 P.3d 797, 810 (Cal. 2001). (The California Supreme Court recognized that the First Amendment generally protects artistic and creative works, but found that the t-shirts in question were not sufficiently transformative because “the artist’s skill and talent [was] manifestly subordinated to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his or her fame.”
- CLAIMANT MAY ATTEMT TO PROVE LIFE STORY IS NO LONGER NEWSWORTHY
Florida law does not impose liability for publication of facts that are of legitimate public concern. The Florida Supreme Court has recognized that this “newsworthiness” exception presents a “formidable obstacle” for a plaintiff bringing an invasion of privacy lawsuit. Hitchner v. Cape Publication, Inc., 549 So. 2d 1374, 1377 (Fla. 1989). This exception to liability is very broad; without question, this covers things like current events of public significance and information about the actors who take part in them. It also covers “soft news” and other human-interest portrayals and accounts.
- THE INFORMATION THE DEFENDANTS ATTEMPT TO USE IS NOT OF PUBLIC INFORMATION
- THERE IS NO INCIDENTAL ADVERTISING
Respondent may argue that when you use the likeness of someone that is a matter of public concern or a creative work then you may also use it for truthful advertising of your work. However, as discussed supra, the advertisements directly refer to Claimant and his story.
- Overcoming Freedom of Press Defenses
The libel defenses that Claimant has to overcome are: a) substantial truth, b) opinion and fair comment privileges, c) fair report privilege, d) wire service defense, e) neutral reportage privilege (the lower courts have recognized this but the Supreme court of Florida hasn’t yet), and f) exception to the F
- MORE INFORMATION IS NEEDED TO DETERMINE WHETHER SUBSTANTIAL TRUTH IS A VALID DEFENSE
Respondent may argue that truth is an absolute defense to defamation. Also, that it does not have to be accurate in every possible way to be true.
- OPINIONS AND FAIR COMMENT PRIVILEGE
Respondent may claim that his opinions on what occurred is what the manuscript is about. However, as it is portrayed through advertisements, this is largely unsupported. Respondent seeks to tell the story as supported by facts.
- FAIR REPORT PRIVILEGE WILL NOT APPLY AS THE MANUSCRIPT HAS MORE INFORMATION
Respondent may claim that the fair report privilege will apply. However, Respondent’s manuscript seeks to elicit statements beyond just the publicly available information.
- WIRE SERVICE DEFENSE IS NOT APPLICABLE
- NETURAL REPORTAL PRIVELIGE
- THIS IS NOT AN EXCEPTION TO FLA STAT. 540.08 BECAAUSE THIS IS NOT A CURRENT OR LEGITIMATE PUBLIC CONCER
The defense may argue that there is an exception in FL STAT. 540.08 that provides that the statute does not apply to book, which is published as part of a bona fide news report or presentation having a current or legitimate public interest. Donahue v. Warner Bros 194 F. 2d 6. However, as discussed supra, this is not a current or legitimate public interest. This is a rehabilitated citizen’s own private story.
- MISREPRESENTATION BY RESPONDENT
In order to establish a prima facie case for misrepresentation our client must show a) a false statement concerning a material fact, b) the representator’s knowledge that the representation is false, c) an intention that the presentation induce another to act on it, and d) consequent injury by the party acting in reliance on the representation. Johnson v. Davis, 480 So.2d 625 (Fla. 1985).
- BREACH OF CONTRACT BY RESPONDENT
In order to establish a prima facie case for breach of contract the injured party must show: a) the existence of a specific contract and relevant terms of the contract, b) breach of the agreement between parties, and c) damages naturally and necessarily resulting from the breach. JMA, INC. V. BIOTRONIK SE & CO. KG, NO. 12-23466-CIV-SEITZ/TURNOFF (S.D. FLA. FEB. 2, 2015)
The law of defamation is constantly evolving and each case is unique and different based on the facts. To discuss the particulars of your case, please schedule a consult with one of our experienced defamation attorneys.