When you are the subject of defamatory statements, it can feel like the whole world is against you. Each state approaches defamation differently—but if you are a victim of defamation of character in Florida, you need the knowledge and tools to fight back.
Florida law defines defamation as a knowingly false statement made for the purpose of damaging the victim’s reputation or character. In order to qualify as defamation in a Florida court, the statement must generally be:
- Communicated to a third party (“publication”),
- Objectively untrue (“falsity”),
- Made without caring if the statement is true (“reckless disregard or negligence”),
- Substantially damaging to the victim’s reputation (“actual damages”), and
- Not just offensive, but objectively harmful (“defamatory”).
At Minc Law, we have represented defamed individuals and businesses across 5 countries and 26+ states—including Florida. We are intimately familiar with U.S. and Florida defamation law and have authored 22+ state guides to help clients and non-clients alike.
This article will cover the different forms of defamation in Florida and what to expect when filing a defamation suit. We then explain the potential defenses to defamation and what outcomes you can expect in a defamation suit.
Defamation in Florida Explained
Defamation is the umbrella term for publishing a false statement that harms the reputation of another person or entity. Defamation is also known as defamation of character, and it includes two types of defamation: slander and libel.
- Slander is spoken defamation, while
- Libel is written or published in a tangible medium.
One way to remember the difference between slander and libel is that ‘slander’ and ‘spoken’ both begin with an ‘S’.
How to Prove Defamation of Character in Florida
To plead a defamation claim effectively in Florida, you must prove the following elements (See Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008)):
- The defendant acted with knowledge or reckless disregard as to the falsity of the matter concerning a public official, or at least negligently on a statement concerning a private figure;
- Actual damages; and
- The statement must be defamatory.
A well-pleaded defamation case must be built on the elements of its legal claim. If you wish to be successful in your defamation lawsuit, you must plead each element thoroughly to avoid delay or dismissal of your case.
Below, we examine these five elements in great detail.
The statement must have been communicated to at least one third party, at least verbally (i.e., libel), or in writing (i.e., slander). Generally, when writing is published publicly online and on social media, the publication requirement is assumed to be met.
At the heart of defamation is that the statement in question was, in fact, false. A statement that is substantially true, an opinion, or a generalization does not constitute defamation. Just because a statement is offensive and distasteful does not mean it constitutes defamation unless it meets the requirement of falsity.
To learn more, see our articles: “Can a Statement of Opinion Be Defamatory?” and “The Difference Between Defamation and an Insult”.
3. Reckless Disregard or Negligence
The speaker must have acted with at least negligence in determining whether the statement was true. If the plaintiff is a public official or celebrity, the standard is higher: the defendant must have acted with actual malice or reckless disregard for the statement’s falsity.
4. Actual Damages
The false statement must have resulted in real harm to the plaintiff’s reputation, personal, and/or professional life. If the defamation is per se, damages are assumed—but it is still a good idea to prove the harm you suffered.
We cover the types of damages awarded in Florida defamation cases in greater detail below.
Unlike in a charge of false light, where the plaintiff must prove the publicity would be “highly offensive to a reasonable person,” a defamation plaintiff must prove the communication prejudiced them in the eyes of a “respectable minority of the community.” Restatement (Second) of Torts § 559 (1972).
Defamatory statements are not just offensive; they must cause objective harm—such as economic, personal, or political.
What is Libel Per Se in Florida?
In Florida, libel per se (or slander per se) is a statement that is so inherently damaging to the plaintiff’s reputation that they do not need to prove they suffered actual damages due to the statement for it to constitute a valid claim. Damage to reputation is assumed, given the nature of the statement.
However, even if a statement is classified as defamatory per se, meaning that even though damages are technically presumed, with Florida courts, this may no longer be the case (see below). We recommend as a best practice for Plaintiffs filing defamation lawsuits to always identify and cite supporting evidence from the outset to prove the harm suffered, whether it qualifies as libel per see or not.
For example, when a statement charges a person with committing an infamous crime or felony, the statement is considered defamatory per se. According to Florida law, “infamous crimes” include “murder, perjury, piracy, forgery, larceny, robbery, arson, sodomy or buggery.” Felonies are also considered infamous crimes.
However, if a reasonable audience could assume the speaker’s accusation is an exaggeration, it is unlikely the matter would rise to the level of libel per se. In Murray v. Pronto Installations, Inc., the defendant posted on Facebook that their employer would “lie to you, steal from you.” The court found these statements were not defamatory per se because “a reasonable reader of Murray’s Facebook post would have known that the statements therein were ‘emotionally charged rhetoric’.”
Libel per se is becoming less relevant in contemporary Florida cases. In Mid-Fla. Television Co. v. Boyles, the Florida Supreme Court held that presumed damages for libel per se are no longer available. They stated that the “per se” concept is relevant only as “a useful shorthand” for showing that the statement is defamatory on its face.
What is Online Defamation?
As its name suggests, online defamation is simply defamation that takes place online.
To prove online defamation in court, you must prove the elements listed above: publication, falsity, reckless disregard or negligence, and actual damages. The main difference is that the defamatory statement(s) were said and done on the internet, which includes social media and certain gaming sites.
Important Considerations to Succeed in a Florida Defamation of Character Lawsuit
In this section, we explore several issues that may affect the difficulty of proving a claim for defamation of character in Florida.
Proving Defamation Against Public & Private Figures in Florida
Another consideration is the type of person that has made the claim—whether they are a public figure, limited public figure, or private figure.
The Eleventh Circuit has noted two fundamental differences between public and private figures:
- Public figures have more access to the media, so they have “a more realistic opportunity to counteract false statements than private individuals normally enjoy.”
- More importantly, “public figures … voluntarily expose themselves to increased risk of injury from defamatory falsehoods concerning them.”
Limited-purpose public figures are only public figures due to a short-lived event (like a controversy or viral social media post). In Silvester v. American Broadcasting Companies, the court found that if the defamation caused the plaintiff to be involved in a controversy, the plaintiff becomes a limited-purpose public figure.
Given the previous definitions, those who do not qualify as a public figure or a limited public figure are primarily considered private figures.
Statements of Public vs. Private Concern in Florida
Florida courts break up the pleading standard for defamation based on whether the issue is a matter of public concern. Just as Florida defamation law differentiates between public and private figures for purposes of protecting (and encouraging) free and open debate, it also differentiates between statements of public and private concern. Statements of public concern are topics that are in society’s best interest to discuss openly and without fear of legal repercussions.
Although Florida courts originally followed the traditional approach of placing the burden of proving the truth on the defendant, the U.S. Supreme Court has shifted the burden to the plaintiff in cases involving matters of public concern.
If the case does not involve a matter of public concern, “substantial truth” is an affirmative defense that the defendant has the burden of proving. In Berman v. Kafka, the court explained that to satisfy the burden of proving a substantial truth affirmative defense, the defendant “need only show that the ‘gist’ or the ‘sting’ of the statement is true.”.
Does Florida Have Criminal Defamation Laws?
Most cases of defamation are based in civil court, but Florida does have a criminal defamation statute.
Libel is considered to be a first-degree misdemeanor under Florida Statute 836.01. In Florida, a first-degree misdemeanor comes with damages up to $1,000.
Florida’s criminal libel statutes cover a number of different statements, including:
- General libel (Section 836.01),
- Anonymous defamatory statements in a newspaper (Section 836.03),
- Allegations of unchastity of a woman (Section 836.04), and
- Communications of libelous matters to newspapers (Section 836.09).
While criminal defamation laws do exist, they are rarely, if ever, enforced.
Damages Awarded for Defamation in Florida
Several different types of damages can be awarded in a defamation suit, including:
- Actual damages,
- Punitive damages, and
- Presumed damages.
Actual Damages in Florida
Under Florida law, a plaintiff must prove actual damages to sustain a defamation claim.
Actual damages, also known as compensatory damages, can be broken into two recognized categories in Florida: general and special damages.
- General damages reimburse the plaintiff for reputational harm and emotional distress. There is no exact standard for compensation; the award should be “fair and just in the light of the evidence.”
- Special damages reimburse the plaintiff for real, out-of-pocket losses due to the defamation.
A compensatory damage award in a Florida libel case may include recovery for direct or indirect pecuniary loss, mental suffering, and injury to reputation. In Fernalld v. ABB., Inc., the plaintiff was awarded $550,000 in damages due both to their financial distress and depression.
Punitive Damages in Florida
Punitive damages are awarded on a case-by-case basis, depending on the type of concern and malice involved.
If allegedly defamatory statements involve matters of public concern, punitive damage can only be recovered if “actual malice” is shown. And in Florida, not only must the plaintiff prove “actual malice,” but also common law “express malice” if they wish to recover punitive damages.
In other words: not only must the defendant know that the statement is false (actual malice); they must intend to cause grievous harm to the plaintiff (express malice).
However, in a private action not involving a matter of public concern, one Florida court held that a claim for punitive damages in a libel case must be supported by “willful, wanton, and intentional misconduct” without reference to an “express malice” standard.
The final kind of damages that can be recovered in Florida are presumed damages. These are awarded in per se defamation matters, where harm is assumed—no proof is required.
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. holds that presumed damages are available in Florida for defamations not involving matters of public concern.
Statute of Limitations for Florida Defamation Claims
A statute of limitations is the window of time in which the plaintiff must bring a charge against the defendant. You must file your defamation lawsuit within the statute of limitations in your jurisdiction if you do not want your case thrown out or dismissed.
Each state has its own statutes of limitations for various claims. If you plan to file a defamation lawsuit in Florida, it is important to understand the deadlines and time limits in play.
What is the Statute of Limitations for Florida Defamation Claims?
Florida’s statute of limitations for defamation is two years. The statute of limitations starts running as soon as a publication or exhibition has been posted, or once the statement has been uttered.
Does Florida Follow the Single Publication Rule?
The single publication rule states that the clock starts running on the statute of limitations the first time the defamatory statement is made. And if the defendant published the statements about you on various occasions, only the first time matters for the limitations period.
In Florida, the single publication rule depends on “whether a separate and distinct decision was made to republish the material. Any modification of the material might shed light on whether a separate decision to republish was made, but the absence of modification does not mechanically place a publication within the single publication rule.”
In other words, Florida generally follows the single publication rule. But if the defendant made a “separate and distinct” decision to republish the statement, the rule may not apply.
What is the Deadline to File a Lawsuit in Florida?
The filing deadline in Florida depends on the charge you bring forth, so you should look at each law’s statute of limitations. However, for a general deadline to file a lawsuit, please see the Florida Supreme Court requirements below:
- You must file either online or in person. Faxed or emailed filings are not accepted. Paper filings must be delivered from 8 AM to 5 PM Eastern Standard Time. Filings are not accepted after 5 PM on the deadline date.
- If an attorney represents you, they can submit your filing through the Florida Courts eFiling Portal up to 11:59:59 PM for that submission date.
- The filing fees (as of April 2023) are listed below:
- $300 case filing fee
- $295 notice of joinder fee
- $295 cross-notice filing fee
- $100 pro hac vice fee
- $150 half-case filing fee
- $295 motion to intervene fee
Defenses for Defamation in Florida
Before filing a defamation lawsuit in Florida, you should be aware of all the defendant’s potential defenses to defamation. Understanding potential defenses can increase your likelihood of success and strengthen your overall claim.
In this section, we define several common defamation defenses, as well as final tips for victims of defamation in Florida.
What Are Some Defenses for Defamation in Florida?
The most common defenses to defamation in Florida include:
- Notice, and
- Invited defamation.
Defense #1: Opinion
By definition, defamation must be a statement of fact—therefore, opinion does not rise to the level of defamation.
Statements of pure opinion cannot be acted upon for libel or slander. For example, in Town of Sewall’s Point v. Rhodes, a framed photograph of a neighborhood home bearing the words “Our View of the Hillbilly Hellhole” was displayed on the front counter of the town hall. The court held that the photograph was a statement of pure opinion and that the caption simply provided commentary on the facts presented in the photograph.
Statements of mixed opinion and fact are to be determined by the jury. One court found that courts “must examine the words used, together with the totality of the circumstances and the context, within which it was published.”
Defense #2: Truth
Truth is another defense to defamation. Article 1, Section 4 of the Florida Constitution states that the defendant should be acquitted “[i]f the matter charged as defamatory is true and was published with good motives.” The “good motives” requirement only applies in cases not involving public figures or matters of public concern.
In Dunn v. Air Line Pilots Ass’n, the court held that falsity is determined by how a reader would reasonably construe the statement, rather than by legalistic or technical definitions of terms.
In LRX, Inc. v. Horizon Assocs. Joint Venture, the court found that truthful statements made with improper motives could be actionable.
The substantial truth defense (also known as the “different effect” test) protects many media publications. If the publication would not have a different effect on the reader’s mind with the defamatory material removed, it is not libelous.
For example, in Woodard v. Sunbeam Television Corp., a news broadcast falsely claimed the plaintiff served a four-year prison term. The plaintiff actually only served two years. The court found that the length of the prison term would not have a different effect on the viewer’s mind; therefore, the claim was not actionable.
Defense #3: Retraction as a Mitigating Factor
Another way the defendant can mitigate defamation charges is to retract the defamatory statement.
Plaintiffs must give proper notice to the defendant before filing a lawsuit—which gives them time to make a retraction. If a good-faith publication makes a correction, apology, or retraction within 10 days of receipt of the required notice, the plaintiff’s recovery is limited to “actual damages.”
Also, broadcasters can demand an advance copy of third-party broadcasts, which frees them from liability for defamatory statements not contained in the advance copy.
Defense #4: The Defense of Privilege
Privilege’s legal purpose is to protect freedom of speech. If the defendant has privilege, they have a legal right to communicate those statements to a third party. Therefore, that communication was not defamatory.
The five categories of privilege include:
- Absolute privilege, which protects statements made in the public interest;
- Qualified privilege, which protects speakers under certain conditions (like in judicial proceedings);
- Fair report privilege, which gives the media permission to report on information in official documents;
- Statutory privilege, which are specific speech contexts protected by law; and
- Neutral reportage, which protects news organizations reporting about public issues.
Defense #5: Anti-SLAPP Statutes
Another way a defendant can fight a defamation claim in Florida is to use an Anti-SLAPP statute. Florida’s anti-SLAPP statute prohibits individuals or entities from filing a meritless lawsuit against a person for exercising their right to free speech about a public issue.
The statute creates “a right to an expeditious resolution of a claim.” It allows defendants to file a motion for dismissal, final judgment, or summary judgment that the court must set for hearing as soon as “practicable.”
In anti-SLAPP matters, the court awards the prevailing party reasonable attorney’s fees and costs. In Corsi c. Newsmax Media, Inc., the plaintiff was fined for filing a meritless lawsuit.
However, the prevailing party provision allows a plaintiff who defeats an anti-SLAPP motion to obtain their reasonable attorney’s fees and costs, as well.
Section 720.304(4) protects the right of parcel owners to exercise those same rights. It applies exclusively to claims against landowners arising out of their speech about their homeowners’ associations. The statute provides the same protections as the general anti-SLAPP statute, except it allows a court to award treble damages to a prevailing parcel owner. The statute also prohibits a homeowners’ association from spending association funds to prosecute a SLAPP lawsuit against a parcel owner.
Defense #6: Notice
Florida law requires plaintiffs to provide written notice to the defendant specifying the alleged defamation before filing a claim. If the plaintiff does not provide at least a five-day notice, their complaint may be dismissed.
Defense #7: Invited Defamation
If the plaintiff precipitated (or permitted) the defamatory statement’s release, the claim is not actionable.
The Restatement (Second) of Torts § 583 similarly states, “the consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation.”
How Does the First Amendment Affect a Defamation Claim? (Required Pre-Suit Notice)
The first amendment is typically used as a defense against a defamation claim. However, the Florida legislature has specific requirements for a defamation claim that can protect first amendment interests at the same time.
First, Section 770.01 states that a prospective plaintiff must give a media defendant notice five days before initiating a civil action. The notice must specify the alleged false and defamatory statements contained in the article or broadcast.
Second, Section 770.02 limits the damages a plaintiff may recover when:
- The statements were published in good faith,
- The statements were false thanks to an honest mistake,
- There were logical reasons for believing the statements were true, and
- A full and fair correction, apology, or retraction was published or broadcast within a specific time period.
In Jews for Jesus, Inc. V. Rapp, the Court found that these requirements “are necessary to ensure the delicate balance between preventing tortious injury… and protecting the constitutional right to free speech.”
What Should You Do if You Think You May Have Been the Victim of Defamation of Character in Florida?
Being the target of defamatory statements is always anxiety-inducing. It is important to keep your wits about you—and avoid reacting heatedly and making the situation worse.
The best way to fight defamation of character in Florida and restore your reputation is to remain calm—and remember, you do not have to fight this defamation alone. Your first reaction may be to respond to the attacker in kind. Instead, step back and avoid engaging with the defamer further.
Do not take extreme action (especially hurting yourself or others). The best thing you can do is to document what has been said about you immediately, as thoroughly as possible. You can use a preservation tool like Page Vault to capture online evidence of defamation.
Then, contact an experienced defamation attorney. Our team at Minc Law can help you devise an effective legal strategy, remove defamatory content from the internet, and file a lawsuit to hold the defamer accountable for their actions.
“They did a great job with my case and kept me in the loop the whole time.”
Jan 14, 2022
To schedule your initial, no-obligation defamation consultation with an intake specialist, please call (216) 373-7706, speak with one of our dedicated Chat representatives, or fill out our online contact form.
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