Florida’s Definition of Defamation
The tort of defamation – also known as defamation of character – is an all-encompassing legal term defined as the “act of making or publishing a false statement to a third-party, resulting in harm to another’s reputation.” As defamation is considered a civil wrong in Common Law jurisdictions (ex. U.S., U.K, C.A.), it is commonly referred to as the “tort of defamation,” and may be broken down into two major types:
- Libel: a written or published communication of a false statement of fact to a third-party, resulting in harm to another’s reputation.
- Slander: a spoken communication of a false statement of fact to a third-party, resulting in harm to another’s reputation.
Most people actually confuse libel and slander, and more often than not use the term “slander” to describe written defamation, when in fact it’s the other way around! It’s important to familiarize yourself with the two distinct types of defamation, because as you’ll see, statute of limitations for bringing each claim may vary by state – oftentimes, slander actions are required to be brought earlier than a libel claim.
Some common names the tort of defamation of character may be referred to are:
- Character assassination, &
- Disparagement – If you are looking to read up on commercial or business disparagement, check out our comprehensive blog post titled, “What is Business/Commercial Disparagement.”
Additionally, parties who make or publish defamatory statements to another are often referred to as: libelers, slanderers, defamers, and less commonly, as famacide.
Now, let’s get into the state specifics and Florida’s definition of defamation.
Florida law will deem a statement defamatory “if it prejudices the plaintiff in the eyes of a substantial and respectable minority of the community.”
Florida’s Elements of Defamation
When bringing a defamation lawsuit in Florida, plaintiffs will be required to establish and prove specific elements in order to successfully recover damages (Please see Section 5: Defamation Damages). In Florida, defamation plaintiffs are required to prove five elements, specifically:
- The actor must have acted 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 citizen;
- Actual damages; &
- The Statement must have been defamatory.
The third element can be a bit of a handful to wrap your head around right now, but we will address all five elements of defamation in Florida in great detail below. And, if you want to skip to the third element, please see ‘Section 3: Private vs. Public Persons: Which One Am I?’
Defamation Law Fact: Online defamation is like a wildfire, the longer you let it sit and embed itself into the inner fabrics of the internet, the more damage it’s going to do.
If you’ve been the victim of online defamation and want to explore your removal options, reach out to the internet defamation removal lawyers of Minc Law today! Our team of experienced defamation removal lawyers have secured hundreds of online defamation takedowns and all for a flat reasonable fee.
At Minc Law, we boast a nearly 100% removal rate, and have litigated in over 19 states and 3 countries. Reach out today to schedule a free, initial no-obligation consultation by calling us at (216) 373-7706, or by filling out our online contact form.
At Minc Law, we are here to fight for your reputation.
Florida’s Pleading Standard for Defamation
Pleadings are governed by the Federal Rules of Civil Procedure, which outlines the requirements and formalities both plaintiffs and defendants must abide by when commencing a civil suit. Pleadings are formal written statements exchanged between parties to a lawsuit, outlining each’s claims, issues, and various defenses. It’s important to understand that each state has their own laws and rules governing pleadings, therefore you should first familiarize yourself with your individual state’s before bringing a defamation claim.
First, let’s take a look at what exactly pleadings are, and some common examples of them.
- Complaint: The complaint is the first written statement filed by the plaintiff, initiating the actual defamation action – or any action for that matter. Complaints describe the plaintiff’s claims, positions against the defendant, establish necessary facts and issues of the case, and request damages.
- Answer: The answer is just as it sounds, the defendant’s response – or answer – to the plaintiff’s complaint, where they admit or deny the specific allegations and claims alleged by the plaintiff. A defendant’s answer will commonly argue why a plaintiff’s case shouldn’t succeed, and any relevant defenses they may rely on.
- Counterclaim: Counterclaims are claims usually filed by the defendant, and are made to offset another claim in the legal action.
- Reply: A reply is a plaintiff’s response to the defendant’s answer, and occurs after a defendant files a counterclaim.
Each area of law has its own specific pleading requirements. For instance, in some areas of law, time may be of the essence, so there may be stricter procedural requirements – such as an expedited timeframe for filing a motion. Or, in order to weed out overbroad and vague claims, the law may prescribe for plaintiffs to include exact or specific language in their pleading – as to properly define the scope of the action and give the defendant sufficient information to respond.
When bringing a defamation claim in Florida, plaintiffs are required to plead a short and plain statement of facts, demonstrating a plaintiff’s entitlement to relief. Additionally, “allegedly defamatory words should be set out in the complaint.”
A point worth noting is that Florida’s pleading requirements do not necessarily require plaintiffs to provide the alleged defamatory words verbatim in their complaint.
Once again, Florida defamation plaintiffs are:
- Required to plead a short & plain statement of facts,
- Which demonstrates their entitlement to relief, &
- Should lay out the allegedly defamatory words used or published – although they need not be repeated verbatim.
Now, let’s take a look at certain statements the law considers to be so inherently defamatory, that plaintiffs need not prove damages – the fourth element required for defamation claims in Florida. Such statements are often referred to as “libel per se,” “slander per se,” and “defamation per se.”
What Statements & Publications Does Florida Consider ‘Defamation Per Se’?
Florida considers four types of statements as defamatory per se.
- Statements made about a person committing a felony,
- Statements asserting a person possesses a disease,
- Statements and imputations that a person possesses characteristics unfit for business, &
- Statements asserting a woman has acted promiscuously.
In situations where plaintiffs have been subjected to a false statement or imputation of possessing a disease, it has most commonly been the imputation of a “loathsome disease,” such as a sexually transmitted disease or leprosy.
What’s worth noting is that defamation per se generally relieves plaintiffs of having to prove damages – because the statements are so inherently damaging – and the damages are typically “presumed.”
However, Florida applies the Supreme Court ruling from famed First Amendment defamation case, Gertz v. Robert Welch Inc., which eliminates presumed damages for defamation per se actions against media defendants.
Below are three examples of defamation per se in Florida.
- Commission of a felony
- A newspaper article that described the plaintiff as the owner of a truck full of marijuana seized by the police constituted libel per se.
- Unfit for profession
- A radio broadcast that alluded to criminal violations and “subject[ed] the appellant to distrust, contempt, and ridicule, and [injured] him in his professional, official, and personal relations” was deemed to be libelous per se.
- A line can be drawn between real and fictional name-calling in the world of defamation. The line in a poem that called someone a hooker, was considered defamatory, because hookers are real – while the line in the poem calling someone a witch was not considered defamatory, because witches are not real.
Defamation Per Quod
Now, think of the exact opposite of defamation per se. You get “defamation per quod,” a legal principle which does not presume damages and requires plaintiffs to provide supporting and extrinsic evidence in order to prove the statement or publication was actually defamatory.
Defamation per quod is not prima facie apparent, and is usually associated with “special damages” (Please see Section 5: Defamation Damages) due to the requirement that a plaintiff(s) estimate or particularize damages.
In Florida, defamation per quod actions require an allegation and proof that the defamation precipitated an injury. Here, precipitated means that the defamation was the cause of injury.
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. And, in cases of innuendo, extrinsic evidence must be supplied that “must be known in order to inflict an injury.”
Defamation by Implication
Similar to per quod actions, which concerns innuendos and statements needing proof of supporting evidence, defamation by implication occurs when true statements are stated in a way that implies a defamatory connection – or the omission of certain facts – as to create a defamatory implication.
They key word in defamation by implication actions is that the statement was actually true, but is used in a malicious context to create a defamatory auro or implication surrounding it.
For example, in Florida, the unauthorized use of a plaintiff’s image on a pornographic movie constituted defamation by implication because it suggested that the plaintiff was affiliated with the pornographic movie or pornographic industry.
Defamation Removal Fact: Sending a cease and desist letter is an effective and free way to let offending parties and websites know you mean business.
Important Florida Defamation Requirements & Formalities
Do Florida Courts Have Jurisdiction Over Out-of-State Defamation Defendants?
Simply put, Yes.
Under Florida’s Long Arm Statute, Florida courts do have jurisdiction over out-of-state defendants who commit tortious acts within the state of Florida.
More specifically, the statute reads:
“Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the act enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts…:
(b) Committing a tortious act within this state…”
Take note that this also includes persons who have committed tortious acts through an agent as well.
Does this include defamatory statements posted on the web?
Yes, however, defamatory statements posted on the web are subject to Florida jurisdiction only once the statements are accessed by a third party in Florida.
So, what’s the takeaway from Florida’s Long-Arm Statute?
Just because an online defamer and defendant lives out of state does not mean they are immune from liability for their defamatory and tortious acts. Out-of-state defendants will be subject to Florida jurisdiction for committing defamation of character.
Online Libel Removal Tip: Understanding libel and slander in the U.S. can sometimes be difficult because definitions typically differ between states. Some states choose to codify both slander and libel under the same set of laws, while others go into more detail and sometimes criminalize defamation.
In Which Venue Can Florida Defamation Plaintiffs Sue a Defendant (Where Can I Sue For Defamation?)
So now that you are familiar with the extent of Florida court’s jurisdiction over out-of-state defendants, it’s important to understand where you can bring a defamation suit – against both in-state and out-of-state defendants.
In Florida, defamation plaintiffs may bring an action:
- Where the defendant resides,
- Where the cause of action arose, or
- Where the property at issue is located.
However, what happens when neither of the plaintiffs reside in Florida after the defamation was perpetrated?
Under the common legal doctrine ‘Forum Non Conveniens,’ courts may sometimes refuse to take cases and jurisdiction over a subject or matter where there is a more appropriate venue (court) available.
Florida has – in the past – strictly applied the doctrine of forum non conveniens. Most notably, an appellate court refused to dismiss a case where although NONE of the parties were currently residing in Florida, one plaintiff had resided in Florida at the time the defamation was published.
So remember, just because neither the plaintiff or defendant still live in the state of Florida, as long as they were residing in Florida at the time of publication of the defamation, then Florida courts will likely opt to hear the case – unless there is clearly a more convenient forum.
To clear things up, here’s an easy-to-follow flow chart to help you understand the proper venue in which defamation plaintiffs may bring a defamation claim and sue defamation defendants.
Does Florida Have a Statute of Limitations For Defamation Claims? And, If So, How Long Do I Have to Bring a Claim?
A statute of limitations is a law defining and outlining the timeframe plaintiffs have to bring and initiate a legal proceeding or action against a defendant. Should a plaintiff fail to bring their defamation – or other – claim within the required timeframe, then – absent special circumstances – they will likely be prevented from filing their claim. And, oftentimes if they do decide to file their claim, it’s likely dismissed.
Why do statute of limitations exist? For three fundamental reasons:
- To encourage plaintiffs to bring a valid cause of action with reasonable care and diligence,
- To prevent destroyed or lost evidence and supporting materials needed by a defendant, &
- To prevent more “cruelty than justice.”
After all, does it really make sense financially, legally, or even socially, to bring a claim 15 years down the line for the repayment of a $100 debt? Of course there are certain circumstances involving felonies (such as murder), where the statute of limitations will not be limited. However, in civil proceedings, statute of limitations are employed for practical and efficiency purposes.
In Florida, both libel and slander actions must be brought within two years.
Single Publication Rule
The ‘Single Publication Rule’ is an important legal doctrine governing defamation statutes of limitations and its scope. Under the single publication rule, plaintiffs to a libel suits may only commence one (1) defamation claim for each mass publication of a defamatory statement made by a publisher.
The single publication rule exists to limit the scope by which plaintiffs bring a defamation claim, as otherwise, they may as well bring a defamation claim for every magazine, newspaper, or book that is subsequently published containing the alleged defamatory material. It is most commonly applied in situations where a magazine, newspaper, or other media outlet publishes several copies or prints of a false or defamatory statement.
It operates to curb and avoid the “multiplicity of actions,” and to protect defendants from excessive liability from one publication. Without it, courts would be clogged, and defamation defendants could possibly be on the hook for defamation for the rest of their lives.
Florida follows the single publication rule.
Specifically, the Florida statute of limitations for defamation claims “shall be deemed to have accrued at the time of the first publication or exhibition or utterance thereof in this state.” Florida’s statute of limitations for defamation claims will NOT reset every time the defamatory content is accessed. Additionally, Florida does not recognize any exceptions to the rule for internet publications.
To recap, because Florida follows the single publication rule, defamation claims will be deemed to have accrued:
- At the time of first publication,
- At the time of first exhibition, or
- At the time of first utterance of a defamatory statement.
And, the publication, exhibition, or utterance must have been made in the state of Florida.
Defamation of Character Removal Tip: Libel chill is the discouragement or “chilling” of the legitimate exercise of a natural or legal right in the legal arena. Libel chill may be used in the form of a lawsuit, passing of a law, or other legal action that causes people to refrain or hesitate in the exercise of their right to bring a libel claim.
Florida’s Statute of Limitations vs. Other States
Most U.S. states generally have a one to two year statute of limitations for defamation claims. As mentioned above, libel claims are usually required to be brought before slander claims – not in Florida. And, in the rare case, some states have statutes of limitations exceeding 2 years.
For reference, here is a simple table showing how Florida’s defamation of character statute of limitations compares to several other notable states’.
|Ohio||One (1) year|
|Utah||One (1) year|
|South Carolina||Two (2) years|
|New York||Two (2) years|
|New Hampshire||Three (3) years|
|Massachusetts||Three (3) years|
If you’d like to learn about all 50 states and their statute of limitations for defamation claims, you can check out our comprehensive post, “The Complete Guide to Online Defamation Law“.
If you’re a resident of Florida – or any other U.S. state – and have been the victim of online defamation of character or slander, reach out to the defamation removal attorneys of Minc Law now!
At Minc Law, we boast a nearly 100% online defamation removal rate and all for a flat, reasonable fee. The attorneys at Minc Law know who to work with and how to work with them, and have secured hundreds of swift and permanent online takedowns.
Call us today to schedule a free, initial no-obligation consultation at (216) 373-7706, or by scheduling a meeting online.
Private Persons vs. Public Persons: Which One Am I?
Defamation of character claims generally deal with two types of plaintiffs – the public plaintiff and the private plaintiff. Depending on whether a plaintiff is classified as public or private, they will enjoy different rights under defamation law. Generally, public figures are afforded less amount of protection under defamation law for non-malicious statements, while the standard for bringing a claim for a defamed private party is much lower.
When bringing a defamation claim, it’s important to understand the differences between the two, and which category you fall under. You might just be surprised to find out which category you fall under.
First, why does it matter whether a plaintiff is considered public or private?
The idea of public and private plaintiffs was first addressed in the landmark 1964 defamation case of New York Times Co. v. Sullivan, where the United States Supreme Court ruled that having a clear distinction between the two was vital for promoting “uninhibited debate of public issues” and the Constitution’s First Amendment. Ultimately, the court found that in order to succeed in a defamation claim, public and private plaintiffs would need to meet two separate burdens of proof.
Public persons: Think of your typical celebrity, Justin Bieber, or any other famous person you know. They will be classified under defamation law as a public person – or public figure – due to their voluntary (or involuntary) availment of themselves to the general public. After all, it’s in the best interest of free speech and public policy for the general public to feel comfortable discussing issues of the most influential people out there, and those heavily impacting the way we think, vote, and ultimately, live. In order for a public person subject to defamation to succeed in their claim, they are required to prove the defendant(s) published or made the statement with actual malice – knowledge the statement was false, or with reckless disregard for its veracity.
Private persons: Private persons are your everyday, ordinary, 9-5’er, who has not purposefully availed themselves to the limelight. Private persons enjoy a higher degree of…well, privacy, as their ordinary lives are not impacting the way we vote, think, and live. In order for private persons to succeed in their defamation claim, they are required to prove that the defendant(s) acted with ordinary negligence when making or publishing a false statement. Ordinary negligence is defined as the care one would expect to be exercised by a reasonably prudent person ins similar circumstances.
If you’d like to read up further on actual malice and ordinary negligence, check out our comprehensive blog post explaining defamatory statements.
Like most states, Florida breaks down the concept of private and public persons even further, following the Supreme Court ruling established in which uses two classifications for public figures:
- General Public Figures, &
- Limited Public Figures
Such distinction is affirmed in Florida case, Mile Marker, Inc. v. Petersen, which acknowledges public figure plaintiffs will face different burdens of proof in establishing a prima facie case for defamation depending on whether the plaintiff is a limited public figure or general public figure.
Below is a chart comparing the [four] core types of defamation plaintiffs found in Florida and the necessary burdens of proof needed to succeed in their defamation claim and recover damages.
|Texas's Four Classifications of Defamation Plaintiffs||Private Persons||Public Officials||General Public Figures (GPFs)||Limited Public Figures (LPFs)|
|Definition||Private persons are as their name describes - private, and may also be known as involuntary news figures who have little public opportunity to speak against false statements and charges. Private persons may also be defined as “all other plaintiffs” not falling in a category where the burden of proof is malice.||Plaintiffs who hold “a position in government [that] has such apparent importance, that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance [of] all government employees. Smith v. Russell, 456 So. 2d 462, 464 (Fla. 1984).||Plaintiffs who possess fame in a community and are always a public figure. Saro Corp. v. Waterman Broadcasting Corp., 595 So. 2d 87, 89 (Fla. Dist. Ct. App. 2d Dist. 1992).||Plaintiffs “who have thrust themselves to the forefront of a particular public controversy in order to influence the resolution of the issues involved.” Mile Marker, Inc., 811 So. 2d at 845.|
|Burden of proof||Ordinary negligence||Actual malice - on all matters public and private. Smith v. Russell, 456 So. 2d 462, 464 (Fla. 1984).||Actual malice - in all defamation cases. Id.||*Actual malice - but only for the controversy that gained the limited public figure fame. Smith v. Taylor County Pub. Co., 443 So. 2d 1042, 1049 (Fla. Dist. Ct. App. 1st Dist. 1983). In all other circumstances, courts consider LPFs to be private figures and therefore need only establish that the defendant acted negligently when defaming the plaintiff.|
|Example||A repair shop embroiled in a controversy regarding services not being performed was not a limited public figure because the repair shop did not create the controversy and were considered private persons. Saro Corp. v. Waterman Broadcasting Corp., 595 So. 2d 87, 89 (Fla. Dist. Ct. App. 2d Dist. 1992).||Police officers are considered public officials. Russell, 456 So. 2d at 463-64.||Celebrities, politicians, and other notable figures.||A corporation that marketed its product by comparing and testing its quality with other products was considered a limited public figure. Mile Marker, Inc. v. Petersen Publ'g, L.L.C., 811 So. 2d 841, 846 (Fla. Dist. Ct. App. 4th Dist. 2002).|
Defamation Law Tip: Food libel laws, also known as food disparagement or veggie libel laws are defamation laws protecting food producers who have been unfairly and maliciously criticized or attacked. Such laws typically allow food manufacturers and processors to sue a person or class of persons for making disparaging comments about their food products.
Now, let’s take a look at what the United States Supreme Court and Florida Courts consider to be issues of private and public concern. In the realm of defamation law, depending on the nature of the issue or statement, parties may receive greater protection and immunity from defamation liability.
Issues of Private vs. Public Concern
In conjunction with the greater protection afforded to persons speaking and publishing openly about public figures, typically, statements of public concern are granted greater protection from liability for defamation. Issues of public concern enjoy greater protection due to the promotion of an informed society. Without such protections, journalists, media outlets, and even regular citizens would be unduly censored and less-informed.
On the other hand, issues of private concern generally require plaintiffs to prove more than mere negligence in order to successfully recover damages. This is supported by a U.S. Supreme Court Decision in 1974, which required the proving of actual malice by a private plaintiff against a media defendant in the case of “public or general concern.”
So, what’s Florida’s stance on issues of public and private concern?
In cases brought by private individuals against media defendants – regarding issues of public concern – the Florida Supreme Court has adopted a negligence standard.
However, in cases concerning statements of opinion regarding public officials and public figures, the standard changes to knowledge of falsity or reckless disregard for the truth – also known as actual malice.
What is Considered as a Matter of Public Concern?
Florida defines ‘public concern’ in the context of the First Amendment, to mean matters “relating to any matter of political, social, or other social concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”
If the name Terry Bollea doesn’t ring a bell, maybe ‘Hulk Hogan’ will. Terry Bollea – also known as professional wrestler Hulk Hogan – was embroiled in one of the biggest lawsuits involving the media in the last 10 years.
In April 2012, a sex tape between Hulk Hogan and Heather Clem was leaked online. Subsequently, Gawker released a short clip of the video. Hogan later brought a suit for defamation, invasion of privacy, and negligent infliction of emotional distress, seeking $100 million in damages.
Ultimately, Bollea [Hogan] was awarded $115 million in damages and a Florida judge turned over Gawker’s editor-in-chief’s assets to Bollea. In November, 2016, Gawker and Bollea ended up reaching a settlement for $31 million.
Simply put, if it’s newsworthy, and it affects your life in someway – it’s most likely going to be an issue of public concern.
Online Defamation Tip: In the arena of defamation law, the U.S. is generally considered a pro-defendant jurisdiction for defamation litigation because of its upholding of the Constitution’s First Amendment, while European countries and other Commonwealth countries are typically considered pro-plaintiff.
Common Defenses to Defamation in Florida
Even after a defendant has published or made a defamatory statement, there are still numerous defenses they may rely on in order to eliminate or mitigate liability. In some cases, the publishing or speaking of defamatory statements is even protected by law.
Below is a list of some of the most common defenses to the tort of defamation in Florida
- Privilege (Absolute, Qualified, Statutory, & Fair Report),
- Incremental Harm Doctrine,
- Wire Service Defense, &
- The Communications Decency Act.
In Florida, pure opinion is a complete defense to a defamation claim.
But, what is considered a “pure opinion”?
Statements will be considered “pure opinion” if they “set forth, in the article, the facts on which the opinion is based or when the parties to the communication are aware of the facts or assume their existence and the opinion is clearly based on those facts.”
If defendants back up their reason for their opinion with facts, then this will constitute a complete defense to defamation.
However, mixed opinion will not receive protection under Florida law – mixed opinion will exist when the opinion is based on underlying facts that aren’t included in the publication or assumed to exist.
When determining whether a statement or publication should be classified as pure opinion or not, Florida courts employ the following test:
- They consider the totality of the statement.
- “Examine not merely a particular phrase or sentence, but all of the words used in the publication.” &
- Consider any cautionary language and the medium in which the alleged defamation was published. Id.
3 Examples of Opinion in Florida
- Crooks & criminals: A newspaper article discussing the state attorney’s office’s decision not to prosecute the plaintiff, and their allusion to them as a “crook” and “criminal” was considered to fall within pure opinion because the article disclosed the underlying facts and criminal charges against the plaintiff.
- Hillbilly hellhole: A picture of the plaintiff’s backyard accompanied with the caption “hillbilly hellhole” constituted pure opinion because the picture communicated the underlying basis for the opinion.
- Exorbitant prices: An article stating prices were too high, while listing lower prices elsewhere amounted to pure opinion in respect to a cruise travel service.
The biggest takeaway from the defense of opinion and “pure opinion” in Florida is that the statement must be supported with fact – even a supporting picture has been deemed sufficient.
Since defamation deals with statements and publications which assert false fact – and are untrue at their core – it shouldn’t be a big surprise that truth is an absolute and complete defense to a defamation claim.
After all, even if the truth hurts – it’s still the truth.
In Florida and matters that are not of public concern – or don’t concern public officials – Florida requires the proving of:
The good motives requirement extends beyond the basic defense of truth, and is derived from Florida’s Free Speech Amendment – ensuring acquittal in defamation cases if truth and good motives are proven.
However, one Florida district court recently (in 2014) stated that the good motives requirement is a thing of the past and now, substantial truth alone is a complete defense.
For reference, substantial truth takes the totality of the truth in the statement into account – and absent minor inaccuracies or immaterial statements, the statement will receive immunity under the defense of truth.
Note that substantial truth is a defense in Florida, so long as the “gist” of the statement is true.
When concerning public officials, the burden is placed on the public official themselves to prove – by clear and convincing evidence – that the statement is false. And, in cases not involving public officials, the plaintiff possesses the burden of proving falsity.
Two Examples of Truth in Florida
- Bomb threats: A court held that a statement about the plaintiff making bombs was substantially true, considering the plaintiff said he knew how to make bombs, and the purpose of his statement was to convey anger.
- Incorrect prison sentence: A statement that a bus driver spent four years in prison when he actually spent two years in prison was considered substantially true.
Privilege might sound like a complex legal term, but in fact, it’s quite simple. At its most basic, privilege is a special legal right, entitlement, or immunity, granted to persons and allowing them to publish or make certain statements – even if they are defamatory.
Like issues of public concern, privilege exists in order to promote free debate and discussion of important topics – ultimately, furthering social, financial, political, and economic policies and initiatives. Without privilege – or the legal entitlement – to speak certain things, surely our democratic institutions would falter, and important policies would never be initiated.
In simple terms – privilege is a safe-harbor for persons.
In Florida, the defense of privilege is broken down into seven fundamental types:
- Fair Report,
- Neutral Report, &
Absolute privilege is the complete and absolute right or guarantee to make a statement. It is unqualified, and allows persons to make or publish defamatory statements no matter what. Absolute privilege is an all-encompassing legal term, and even applies in situations where the speaker made the statement with actual malice or reckless disregard.
When you hear absolute privilege, you should be thinking of judicial, administrative, and legislative proceedings.
In Florida, relevant statements made during the course of judicial proceedings are considered absolutely immune from defamation claims – such privilege extends to:
- Counsel, &
The courtroom can often require the need for unsavory things to be spoken, therefore, in the interests of justice, judicial proceedings are absolutely immune.
As mentioned in Section 1 – Florida’s Pleading Standard – judicial privilege will extend to statements in pleadings. It will also extend to depositions – a sworn out-of-court testimony used for discovery purposes in a legal case.
Additionally, statements made in connection with or relevant to quasi-judicial proceedings are absolutely privileged under Florida law.
Two Examples of Judicial Proceedings & Absolute Immunity
- A Florida court held that the allegedly defamatory statements made by counsel in connection with his motion to withdraw were absolutely privileged.
- Touched on in the subsequent form of privilege – Qualified Privilege – qualified privilege will apply to attorneys interviewing potential witnesses outside of trial – and in this case, it was concerning the opposing party’s use of prostitutes.
Executive & Federal Officials
In Florida, absolute privilege extends to statements made by officials from all branches of government in connection with their duties and responsibilities. Without such privilege, legislators, politicians, and other notable government figures would not be able to craft the necessary policies to further society.
3 Examples of Statements Made by Executive & Federal Officials
- Drug smuggling & tax agency: An executive director of a state tax agency telling his staff that the plaintiff was involved in drug smuggling and pornography fell within the defense of absolute privilege because the statements were made within the scope of the director’s duties.
- Sheriff’s website: A sheriff’s website postings, labelling the plaintiff as a deadbeat dad were considered absolutely privileged.
- Dental trouble: Negative statements made by supervisors of a dentist at a state-owned hospital were considered absolutely privileged.
And now, what seems like an obvious absolute defense, but commonly misunderstood, is the absolute privilege of consent. If a person consents to a publication about them, they cannot later sue for defamation on the basis of that publication.
Note that in Florida, the plaintiff may not sue on the basis of that publication, but may still bring a defamation suit for unconsented publications and statements.
Likewise, a person that requests information cannot later sue for defamation based on the information requested. If you ask for it, don’t complain when you get it. Charles v. State Dep’t of Children & Families Dist. Nine, 914 So. 2d 1, 3-4 (Fla. Dist. Ct. App. 4th Dist. 2005).
Examples of Consent in Florida
- A rule in an agreement that the plaintiff consented to all requiring disciplinary actions to be filed with officials was upheld after the plaintiff filed suit for defamation based upon a letter disclosing the disciplinary actions. The court dismissed the defamation suit because the plaintiff consented to the defamation alleged in the lawsuit. Rosenberg, 589 F. Supp. at 552.
- An employee who repeatedly asked for the reason he was terminated was barred from suing for defamation when the employer answered, “because of [your] criminal lifestyle.” Charles, 914 So. 2d at 4.
Both examples are important reminders to be aware of what exactly you are signing and consenting to, otherwise, you could ultimately be waiving your rights to bringing a defamation suit. Also, don’t ask if you don’t want to know the answer.
Other Common Absolute Privileges in Florida
Some other common absolute privileges in Florida include:
- Compelled legislative committee testimony.
- Railway Labor Act Grievance Complaints. &
- Complaints and accompanying documents filed with the Florida Bar.
Statements or publications not protected under absolute privilege may however be protected under qualified privilege – also known as common interest privilege. Qualified privilege will permit persons in positions of authority and trust to speak, publish, communicate, and relay certain statements – even defamatory ones.
Similar to absolute privilege, parties enjoying qualified privilege typically have a moral, legal, or social duty to make such statement known to a particular audience or recipient – and the audience or recipient has a correlating interest in hearing it.
The major difference between absolute privilege and qualified privilege is that unlike absolute privilege where speakers may even communicate defamatory statements with actual malice, qualified privilege does not protect statements made with actual malice. Speakers will lose their immunity if they communicate a statement or publication with absolute malice.
Florida puts this rather succinctly and acknowledges qualified privilege will exist when a speaker shares a common right or interest with the recipient.
- False performance reviews: Two allegedly false performance reviews sent to a prospective employer were deemed to enjoy qualified privilege.
- Basketball employee termination: A basketball team’s statements to the media regarding an employee’s termination were not qualifiedly privileged because the media did not share a common interest with the basketball team.
- Employer email & termination: An employer’s email and statements to employees about the reasons for an employee’s discharge did not fall within qualified privilege.
- Attorney informal investigations: An attorney engaging in informal investigations outside of formal proceedings and discovery will receive qualified immunity if such statements are relevant to the subject matter.
A category worth noting that enjoys qualified privilege in Florida is when a speaker makes statements prior to criminal charges.
Statements Made Prior to Criminal Charges
Prior to criminal charges being filed, statements made to the police or state attorney’s office will be deemed unqualifiedly privileged. However, it is rather narrowly applied in Florida. The Florida Supreme Court clarified the scope and defined it as applying to police and state attorneys, not private individuals. Pre-Litigation Settlement Efforts
In the interest of avoiding litigation and expenses, Florida grants qualified privilege to statements made in settlement or negotiation efforts occurring prior to litigation. Our court system is already quite clogged, so in the interests of parties finding an amicable solution before bringing a claim, qualified privilege exists. Id.
Qualified privilege also extends to drafted complaints published to relevant parties of the dispute.
Other Common Qualified Privileges
Some other common situations where qualified privilege will be granted include:
- Voluntary legislative testimony.
- Irrelevant statements at judicial proceedings.
- Fair comment on public figures or matters of public interest. &
- Statements to a government agency concerning a public issue.
Fair report privilege is a privilege granted to persons publishing reports issued by legislative, judicial, or other official bodies and concerning official proceedings. It’s in public interest for the general public to trust and rely on official government and administrative reports, therefore the law won’t punish those who do.
If you can’t trust an official report put forth by a government agency, then what exactly can you trust?
In Florida, qualified privilege will extend to information published by the news media regarding:
- Public records,
- Proceedings, &
- Information from government officials.
As long as each account is “reasonably accurate and fair,” qualified privilege will exist.
Such privilege also extends to defamatory statements made within reports, as long as the report is accurate. And, if qualified privilege does attach, there’s no duty or need to determine the accuracy of the information.
Also referred to as “neutral reportage,” the neutral report privilege is a common law defense and privilege to libel and other defamation suits involving media and news organizations republishing unverified accusations about public persons and figures.
Neutral reportage is a limited exception to the rule that any person who repeats a defamatory statement or publishing is equally as guilty as the original offending party. Defendants using such defense ultimately claim they aren’t actually agreeing with the veracity of the statement, but simply reporting on it neutrally.
Generally, in order to succeed, defendants need to prove their reporting was unbiased and in the public’s best interest.
While Florida has not formally adopted the neutral report privilege, there have been two notable cases which have recognized the privilege in private figure cases – remember that private persons are as their name describes, private, and entitled to a higher degree of privacy.
All states have certain rules and regulations that are codified, and may be protected under the law no matter what. Below is a list of four common statutory privileges in Florida which immunizes speakers who make such statements.
- Child abuse: Persons who make good faith reports of “child abuse, abandonment, or neglect” will be immune from criminal and civil liability.
- Unemployment compensation: Persons who make communications in connection with unemployment compensation proceedings will be immune from criminal and civil liability.
- Medical review committees: Information provided in connection with medical review committees is not subject to discovery, nor can it be introduced in civil trials or administrative hearings. However, Fla Stat. § 766.101(5) “does not totally abolish the defamation cause of action.” Statutory privilege will protect all documents reviewed at a medical review committee regardless of the source and origination of the document.
- Employer communications to prospective employers: An employer’s communications about a former or current employee to a prospective employer will be immune from civil liability, unless the employer made knowingly false statements. Such statutory immunity does not abrogate (repeal) the absolute privilege of public officials who make statements in the scope of their duties.
Florida Privilege Defense Comparison Chart
|Type||Absolute||Qualified||Fair Report||Neutral Report||Statutory|
|Definition||A legal right, entitlement, or immunity granted to persons - allowing them to communicate statements, even if they are defamatory.||A qualified right granted to persons in positions of authority and trust, allowing them to communicate and relay certain statements - even defamatory ones.||A legal right to publish reports issued by legislative, judicial, and official bodies, in furtherance of government and administrative trust. In Florida, such privilege extends to information published by news media regarding public records, proceedings, and information from government officials, “as long as their account is reasonably accurate and fair.”||A right granted to persons and media organizations who republish a defamatory statement in an unbiased manner. The issue must also be of public interest.||Specific statements and communications protected by law, immunizing and protecting such speakers from threat of defamation claims.|
|Can it be defeated?||No - even if the statement is communicated or published with actual malice.||Yes - if the statement is communicated or published with actual malice.||Yes - if the statement and account is not reasonably accurate or fair.||Varies by statement.||Varies by statement.|
|Examples||Judicial proceedings, quasi-judicial proceedings, statements by executive and federal officials, consented to and invited defamation, compelled legislative committee testimony, Railway Labor Act Labor Grievance Complaints, & Complaints and accompanying documents filed with the Florida Bar.||Statements made prior to criminal charges, pre-litigation settlement and negotiation efforts, voluntary legislative testimony, irrelevant statements at judicial proceedings, & statements to a government agency concerning a public issue.||Statements published by news media regarding public records, proceedings, and information from government officials.||Statements republished by news media or persons which include unverified accusations against public persons and figures. Florida has also recognized this privilege in private figure cases.||Good faith reports of child abuse, abandonment, and neglect. Communications in connection with unemployment compensation, information in connection with medical review committees, & employer communications about former and current employees to a prospective employer.|
Wire Service Defense
The wire service defense is a small yet enduring piece of libel and defamation law, which grants immunity to news media or persons who publish items from a “reputable news service” sent via reputable wire services.
While there is little case law in Florida, they have recognized the wire service defense in the past. Such defense can be overcome if the plaintiff can show that the defendant “did not rely in good faith” and “acted negligently or carelessly in doing so.” Id. at 1483.
The Communications Decency Act
If you’ve read any of our articles before, you’ll know that the Communications Decency Act of 1996 is one of the most powerful pieces of internet legislation that exists today. It is the reason why scam reporting, cheater, consumer advocacy, and other online forums, skirt immunity for libelous and malicious online postings made on their website. We cover the topic in detail in the video below.
Video: What is Section 230 of the Communications Decency Act?
Florida law provides complete immunity for Internet Service Providers – ISPs – and online websites from defamation claims. As mentioned above, such immunity is granted under Section 230 of the Communications Decency Act.
Website and ISP immunity will even be upheld in cases where the website refuses to retract the defamatory information posted.
Brand & Reputation Management Tip: If you own a business or are a sole proprietor, it’s important to establish a budget for online brand management and reputation monitoring. Doing so will help you understand how the general public perceives you, your company, and product, and locate any intellectual property infringers.
Now, let’s move on to the different types of damages a plaintiff may recover in a defamation action.
Florida Defamation Damages
The fourth element essential for bringing an actionable defamation claim is damages, and in Florida, the law requires the plaintiff to have suffered actual damages. In defamation law, the harm and effect of the alleged defamatory statement(s) on a person’s reputation is typically quantified in the form of damages – compensation that is usually monetary, and meant to act as a deterrent or punishment for one’s injury and loss.
In defamation actions and cases, damages are usually classified into four major types. Let’s take a look at the four major types of damages in Florida, the pleading requirements for defamation plaintiffs, and how to successfully recover them [damages].
- Special damages,
- Presumed damages,
- Punitive damages, &
- Actual damages.
Special damages are damages that are special and unique to the particular situation at hand. To recover special damages in Florida, plaintiffs must specifically plead special damages unless the action is defamatory per se.
Special damages are typically associated with the legal principle of defamation per quod (as mentioned in Section 1), due to the need to provide extrinsic and supporting evidence to prove the defamatory nature of the statement(s) in question.
Keep in mind, the fundamental difference between defamation per se and defamation per quote is the plaintiff’s requirement to prove/not prove they suffered damage.
Typically associated with the principle of defamation per se, presumed damages are as their name implies – presumed. Remember, defamation per se presumes damages when a party makes certain statements deemed inherently defamatory (profession, promiscuity, disease, & commission of a felony).
However, keep in mind, following the Supreme Court ruling set forth in Gertz, Florida courts have seemingly eliminated the recovery of presumed damages for defamation per se actions against media defendants.
Most notably, the Florida Supreme Court stated that libel per se only exists in modern era as a “useful shorthand” for defamatory words. Subsequently, such statement and ruling has been interpreted to mean that “a media defendant must nevertheless plead and prove actual injury.”
Punitive damages are also known as punishment damages – meant as a deterrent for oftentimes extremely egregious actions by the defendant. They may also be referred to as “exemplary damages,” and in order to recover punitive damages in a defamation action in Florida, plaintiffs must plead and prove common law or express malice.
Express malice may be proven by either showing the actual publication, or other evidence which demonstrates the defendant’s feelings towards the plaintiff. Id at 651.
For matters of public concern, the Florida Supreme Court has established stricter standards needed for recovering punitive damages – and requires plaintiffs to prove malice by a preponderance of the evidence (that it was more likely than not the defendant communicated a defamatory statement with malice). Additionally, plaintiffs must also prove that the defendant “knew the statement was false or had serious doubts as to its truth,” this time by clear and convincing evidence.
Once again, preponderance of the evidence means that there is just enough evidence to tip the scale in favor of the defendant – think of the defendant as having proved by 51% vs. a defendant’s 49% – while clear and convincing evidence is a higher burden of proof – and must be substantially or highly probable.
Actual damages are sought when a plaintiff experiences real and actual harm, injury, or loss due to slanderous, libelous, and otherwise defamatory communications. They are commonly referred to as “compensatory damages,” and in order for a Florida plaintiff to recover them, they must plead and prove actual damages.
Florida courts have recognized that personal humiliation and mental anguish alone can satisfy the actual damages element of a defamation of character claim – as both are considered tangible effects of the statement(s).
Below is an easily accessible comparison chart showing the major differences between the above four types of damages and what a plaintiff must plead and prove to successfully recover them.
| ||Special Damages||Presumed Damages||Punitive Damages||Actual Damages|
|Definition||Damages usually associated with defamation per quod, which require a plaintiff to prove peculiar, particular, and quantifiable loss or injury.||Damages typically associated with the legal principle of defamation per se, which don’t require plaintiffs to prove actual harm, injury or loss - due to the inherently defamatory nature of the statements.||Damages awarded to punish defendants for their defamatory statements and communications.||Tangible damages suffered by a plaintiff. Florida recognizes personal humiliation and mental anguish as actual damages.|
|How to Prove||Plaintiffs must provide extrinsic and supporting evidence to prove the defamatory nature of the statement.||Plaintiffs need not prove actual damages.||Plaintiffs must prove common law or express malice - via publication or other evidence demonstrating a defendant’s feelings towards the plaintiff. In matters of public concern, plaintiffs must prove malice by a preponderance of the evidence, and that the plaintiff “knew the statement was false or had serious doubts as to its truth” by clear and convincing evidence.||Plaintiffs must plead and prove actual damage, harm, loss, or injury - such as personal humiliation or mental anguish.|
Defamation Removal Tip: Some less common defenses to defamation of character claims include; statements made in good faith that they were true, mere vulgar abuse, innocent dissemination, and no-actual injury.
Frequently Asked Questions (FAQ)
Q. Does Florida recognize legal protections for anonymous speech?
A. It’s complicated. In Florida, the standard for compelling websites to reveal identifying information for anonymous users is still uncertain, as appellate courts have yet to consider the issue.
However, at the trial court level, one court stated that “the anonymity of online commenters ought to be maintained absent a clear and specific showing by the subpoenaing party of a compelling need for the information, and that the information is relevant to an issue in the case and is not available elsewhere.” Costello v. SuperValu, Inc., Case No. 41-2009-CA-001150 (Fla. Cir. Ct., Manatee County Aug. 30, 2010) (order).
The trial court ultimately quashed the subpoena for the identities of the commenters alleging to be “an inside source,” and a party’s girlfriend because the moving party failed to show that the information was not available elsewhere and that a compelling need existed. Id.
Q. What has been the effect of the Internet on free speech?
A. In general, no Florida court has officially recognized arguments that internet speech should be entitled to higher protections than any other type of speech. However, in the context of the “pure opinion” defense, one court eluded to more favorable findings for defendants.
Specifically, such court noted that “anonymous internet trolls and the often-uninformed echo-chamber of the blogosphere” may make it so “no reasonable reader would take Defendant’s statements as asserting facts rather than just one more outspewing of thoughtless rhetoric.”
Q. Can I bring a slander or libel lawsuit/action against a person who is out-of-state?
A. Yes. Under Florida’s Long Arm Statute, Florida courts have jurisdiction over out-of-state defendants who commit tortious acts – such as libel and slander – within the state of Florida.
Q. Am I able to retract, correct, or clarify a defamatory statement before litigation? Does a retraction limit my liability?
A. Under Fla. Sta. § 770.02, a Florida plaintiff’s recovery will be limited to actual damages if the defendant’s publication was a good faith mistake and if the defendant issues a correction, apology, or retraction within the specified period of time.
Q. Does Florida have any laws governing pre-suit notice for defamation actions?
A. Yes. Fla. Stat. § 770.01 governs pre-suit notice for defamation actions and requires – at least five days before filing a suit for libel or slander – a plaintiff to “serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.”
However, such pre-suit notice only applies to “media defendants,” not to private individuals.
In finding that a blogger constituted a media defendant, the court considered whether the blog was “operated to further the free dissemination of information or disinterested and neutral commentary or editorializing as to matters of public interest.”
Q. Does Florida recognize criminal defamation? What states have criminal defamation laws?
A. Yes. Florida is one of the 23 states to have criminal defamation laws in their books.
Publication of libel is considered a first degree misdemeanor.
Under Fla. Stat. § 836.02, such publication must include the full name of the person who allegedly committed the immoral acts.
Newspaper or publishers who publish or communicate defamatory statements by an anonymous user or one with a pseudonym may also be held criminally liable.
Take note that a good faith publication of defamatory statements that is later retracted or corrected will bar criminal proceedings.
Keep in mind, at the Federal level, the U.S. does not have any criminal defamation laws, as they have been declared constitutionally vague in several past cases.
Q. What is an Anti-SLAPP law? Does Florida have Anti-SLAPP laws?
A. Anti-SLAPP laws are protective laws meant to prevent meritless and frivolous lawsuits filed to intimidate, burden, censor, or scare a party.
Florida has several Anti-SLAPP laws.
Florida’s revised Anti-SLAPP statute prohibits both government entities and private individuals from filing meritless claims because the defendant exercised his or her First Amendment rights. As recourse, the defendant of a SLAPP suit can move to dismiss the suit or move for judgment.
The prevailing party shall be awarded attorney’s fees and costs resulting from the lawsuit. Id. If the entity filing the SLAPP suit is a government entity, then the defendant may recover actual damages resulting from the lawsuit. Id. Additionally, a government entity in violation of the Anti-SLAPP statute must file the court’s ruling with the Attorney General.
Florida also has Anti-SLAPP statutes for homeowner’s associations and condominiums. Under Under Fla. Stat. § 720.304(4), homeowner’s in a homeowner’s association have the right to petition government entities or the homeowner’s association. In response to a SLAPP suit, a homeowner may move to dismiss the action or move for summary judgment with accompanying affidavits.
The prevailing party will receive attorney’s fees and costs associated with the lawsuit. Additionally, the court may award treble damages – an amount triple to the amount of actual or compensatory damages. Homeowner’s associations may not expend resources in prosecuting SLAPP lawsuits.
Finally, Fla. Stat. § 718.1224 prohibits SLAPP suits against condominium unit owners, and a condominium unit owner subject to a SLAPP suit may move the court to dismiss the lawsuit or enter final judgment. In the alternative, the unit owner may file for summary judgment with accompanying affidavits. Id. The prevailing party receives attorney’s fees and costs incurred in the lawsuit. The court may also award treble damages. Id. Condominium associations may not expend resources in prosecuting a SLAPP suit.
Q. What is Prior Restraint? Does Florida recognize the legal doctrine of Prior Restraint?
A. Also known as pre-publication censorship, prior restraint is censorship imposed – typically by a government or institution – prohibiting particular speech or expression.
The Florida Supreme Court stated that a court “will not enjoin the commission of a threatened libel or slander.” In limited circumstances where defamation is coupled with another tort, such as intentional interference with business relationships, an injunction may be issued under the guide of a verbal act.
Q. What is defamation insurance? Which parties are at the highest risk of being sued for defamation? Do I need to purchase defamation insurance?
A. Think of defamation insurance as an extension of an already existing insurance policy. It’s a policy covering libel, slander, and other defamation and tort claims against you or your business.
Typically, defamation is covered under “excess liability,” an insurance policy extending beyond the original scope of your policy.
Unless you are engaged in a high-risk profession – such as journalism, news media, independent contracting, or freelancing for notable publications – you likely don’t need to purchase defamation insurance.
To read up further on defamation insurance and where you should consider purchasing it, check out our comprehensive blog post, “What is Defamation Insurance and Do I Need It?”.
Work With the Defamation Removal Lawyers of Minc Law Today!
It’s time to put an end to the online abuse and defamation today. If you’re a resident of Florida, or any other U.S. state, the internet defamation removal attorneys of Minc Law want to work with you to swiftly and permanently secure a removal of any online defamation tarnishing your reputation.
“Dan Powell and Dorrian Horsey worked together seamlessly to restore my reputation after I was wrongly accused of professional misconduct in several, malicious online postings by a reckless and misguided activist group. They secured a public retraction and apology from the group, and Dan used his Internet expertise to identify and hold accountable the individual who impersonated me in a series of fabricated emails that contributed to this scam. Dorrian’s knowledge of the North Carolina court system proved invaluable in reaching a successful settlement that included financial compensation from my impersonator. I don’t believe there is another law firm in the country that could have achieved these results. I strongly recommend Dan and Dorrian to anyone else facing a similar situation.”
Taft Wireback, Aug 23, 2021
At Minc Law, we boast a nearly 100% removal rate of defamatory online content, and all for a flat reasonable fee. Our team of experienced defamation removal lawyers have litigated in over 19 states and 3 countries, securing hundreds of defamatory takedowns.
When working with the defamation lawyers of Minc Law, here’s what you can expect:
- Respect & Courtesy: At Minc Law, we know online defamation is highly invasive and stressful. Just know that our team of defamation lawyers are here to work with and for you. After all, your goals are our goals.
- Open Communication: After the removal and takedown process has commenced, we will make sure to keep you frequently updated on the details of your removal and case. At Minc Law, we pride ourselves on our open lines of communication.
- Results: We know who to work with and how to contact them in order to secure swift and effective defamation of character takedowns. Our lawyers have worked closely with content managers, third-party arbitration services, and website administrators. Businesses, websites, and other offending parties respond to Minc Law.
Reach out today to schedule a free, initial no-obligation consultation by calling us at (216) 373-7706, or by filling out our online contact form.
At Minc Law, we want to fight for your reputation.
It’s time to start crafting your online narrative.
“Minc was easy to contact and replied to my questions quickly and kept me up to date on my status. Communications was a bonus. Success with the outcome was icing on the cake.”
Daren G., Apr 14, 2020