There has been an increase in the number of instances where employees have charged their former employers for defamation, alleging the publication of defamatory statements about their dismissal from the company. In these situations, the most common claim made by the employee is that the former employer published a statement negatively affecting their reputation and employment decisions to a third party, which is usually the prospective new employer. However, there are numerous states, including Florida, that have recognized the defense of self publication. Self publication occurs when the victim of a defamatory act by another goes out and re-states the publication to others by stating what has happened to them and repeating the defamatory acts of another.
Legal Background of Self-Publication Defamation
Looking at common law, a plaintiff registers a case of defamation by presenting the following:
- Statement published to third party
- Injury caused by the statement
- The actual defamatory statement
Usually, the publication element is completed by the demonstration of conveying the defamatory statement to the third party by the defendant. However, there are some cases where the defamatory statement is published by the plaintiff themselves. This is an instance of self-publication and is not actionable under the law.
Lack of Consensus
Courts in Florida where forced self-publication of defamation has been considered, have not reached a common ground regarding applicability or recognition of the offense. Lack of consensus is not because of the law and the protections afforded by said law, but rather, because defamation cases are extremely fact intensive and requires application of the facts to each particular circumstances.
Although employers have many protections from defamation suits including the affirmative defense of self-publication, most employers choose to give a neutral reference about past employees. A neutral reference includes dates of employment, job title, and pay grade. Other information may also be deemed neutral information such as whether the ex employee is rehirable by the company. Neutral references are given so as to avoid liability which may take the form of defamation of character or placing the employee in a false light.