Posted By Alan Sackrin on October 20, 2016
What is Defamation in Florida?
Defamation can be in two forms. The first is libel, which is where someone seriously injures or tarnishes your reputation in writing. The second is slander, which is where someone uses spoken words to harm another person.
Together, “libel” and “slander” make-up what is commonly known as defamation of character. And, committing one of these acts in Florida can be the basis of a civil lawsuit for damages.
What Are The Elements Of A Florida Defamation Of Character Claim?
To prove defamation of character in Florida, a victim must provide admissible evidence of four elements (these elements apply to both libel and slander claims).
The four elements are:
1. the defendant published a false statement;
2. the statement is about the plaintiff;
3. the statement is made to a third party; and
4. the falsity of the statement caused injury to the plaintiff.
What is Defamation Per Se in Florida?
Sometimes, the evidence needed to prove harm is not a large hurdle to overcome. In these cases, a victim does not have to provide as much evidence to win their case as with other defamation of character claims.
This happens when the slanderous or libelous act is considered to be defamation per se. Here, the courts have found that some defamatory statements are so bad that the law will presume that a victim’s reputation has been harmed; the words are so bad, printed or verbal, that the courts impute that harm has happened.
These are words or statements that inspire hatred, distrust, ridicule, contempt, or disgrace; or they harm your work or profession just by being said. See, O’Neal v. Tribune Company, 176 So. 2d 535 (Fla. Dist. Ct. App. 1965)(and litany of cases cited therein).
For more on defamation per se, read our article Defamation Per Se: When Libel or Slander Is So Bad, Do You Need Evidence of Damages Before Punitive Damages Can Be Awarded?
Public v. Private Figures
One of the first things a victim should consider before filing a defamation lawsuit is whether or not the law will consider the victim to be a public figure or a private figure – not all defamation plaintiffs get the same treatment under Florida’s defamation laws.
Public figures have a higher hurdle to jump before they can be awarded damages in a defamation case. They have to prove “actual malice” in order to win.
Who are public figures? In Florida, celebrities and famous people are public figures. And, Florida courts have also found police officers, prison corrections officers, and hospital administrators to be public figures, too.
Why? Florida law has a broad definition of “public figures”. The Florida Supreme Court looks at more than popularity. If an individual has some kind of discretion or power over members of the public, then it may be argued that he or she is a “public figure” for purposes of proving a defamation of character claim.
For example, in Smith v. Russell, 456 So.2d 462 (Fla. 1984), a police officer was found to be a public figure who had to prove actual malice to win his defamation case as a “…highly visible representative of government authority who has power over citizens and broad discretion in the exercise of that power.”
Actual Malice and Negligence
The reason a defamation of character victim needs to determine if they will be considered a “public figure” or “private figure” under Florida law is because of the evidence burden to prove a claim. If a victim is a private figure, the claim is likely easier to prove.
Private figures can prevail with a claim after providing evidence that the defendant was negligent when they spoke or wrote the defamatory statement. Meaning, the bad actor didn’t bother to check to see if the statements they made were true or false before they made them (something a reasonable and prudent person would do before they made a statement that could harm another person).
Public figures have to go further with their proof. They have to show that the defendant was more than negligent. Public figure plaintiffs have to prove that the defendant acted with “actual malice,” i.e., that they knew the statements were false or they made them with reckless disregard of their falsity.
Criminal Libel Laws
Sometimes, defamation can be a crime under Florida law. In fact, there are Florida criminal statutes that define certain written statements as being illegal, which can be found in Florida Statutes 836.01 – 012. These statutes are narrowly written and only apply in specific situations.
For instance, Florida Statute 836.06 forbids anyone to make any false statements about “… the solvency or financial standing of any banking institution or building and loan association doing business in this state.”
For more, read Florida Criminal Defamation.
Defamation by Implication
Can you ever win a defamation case by arguing that the defamation was implied? Yes, Florida courts recognize the claim of “defamation by implication.”
What is defamation by implication? Unfortunately, in Florida it is not that easy to define.
Here, a defendant says something that is true, but under the circumstances the statement gives a false impression. “Literally true statements can be defamatory where they create a false impression,” explains the Florida Supreme Court as it recognized this cause of action in Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008).
For an example of a plaintiff who won their case of defamation by implication, read 3 Examples of Florida Defamation Cases Where Plaintiffs Were Victorious.
What Damages Are Recoverable For Defamation of Character?
It may seem difficult to find evidence of your damages after you have been the victim of libel or slander. Unlike a car accident or a slip and fall, you may not have a file folder filled with doctor bills and hospital invoices. Florida law understands that defamation damages may be hard to prove; still, there are ways to do so.
1. Legal Presumption of Damage
Some kinds of harm from libel or slander are presumed to exist under the law. These are the kinds of things that everyone understands result from defamatory statements being made about you.
Without invoices or other paperwork, Florida juries can award damages for things like humiliation, anxiety, embarrassment, etc.
Defamation damages can also include mental suffering and mental anguish.
2. Specific Damages as Compensation
Other kinds of harm are those than can be documented. Did you lose your job because of the libel? If so, can you document your damages through pay stubs or income tax statements?
These are called “compensatory damages.” And, a plaintiff suing for defamation of character can be awarded economic damages including lost wages or lost employment as long as the claim can be proven up with paperwork or documentation.
3. Punitive Damages for Defamation
Sometimes, the libel or slander is so shocking and horrible that the law will find it is in the public interest to punish the wrongdoer for their actions. These are called “punitive damages” and they are also available under Florida law.
The Florida Supreme Court has ruledthat punishment damages can be assessed against defendants who defame their victim with malice, or ill will, toward him (or her).
What does the plaintiff have to do here? Provide evidence that the defendant acted with “ill will, hostility, and an intent to harm the plaintiff.”
Privileges and Defenses
Once you have proven your defamation case, the defendant may still be able to avoid responsibility. Under Florida law, there are several privileges and defenses which a defamation defendant can assert.
These include the following:
You’ve probably heard about truth as a defense. If a defendant makes a true statement about a victim, then the victim likely won’t be able to prevail in a claim for libel or slander. This concept was settled by the United States Supreme Court in the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and followed by the Florida Supreme Court in Miami Herald Publ’g Co. v. Ane, 458 So.2d 239 (Fla.1984).
Opinion is also a defense to defamation. The First Amendment allows citizens to speak freely and voice their opinions. This is free speech. If someone calls Joe Smith a “fool” or “stupid” then that’s their opinion. The test? The statement cannot be proven to be true or false. It’s just an opinion, even if does do harm to the victim.
3. Comments – Blogs, Social Media and Website Owners
In social media cases, it’s important to note that the Communications Decency Act provides protections for bloggers and web site owners when a third party posts something defamatory on a blog or website. If there is a defamatory comment left on a blog, then the owner or publisher may be able to argue that federal law protects them against liability.
For instance, the online review site Yelp.com has faced several lawsuits seeking defamation damages for bad reviews placed on the site by unhappy customers of various businesses.
Yelp’s defense? It is a publisher and these were the comments of third parties. Under Section 230 of the Communications Decency Act, Yelp was protected from liability. The plaintiff could only seek relief from the individuals who wrote the words in the online reviews, not Yelp as a website host.
Furthermore, Section 230 may also apply to protect social media sites like Facebook, Twitter, Snapchat and Instagram.
Statute of Limitations
How long does a victim of defamation of character have to file a lawsuit for the damages they have suffered from libel or slander? Not long! The Florida legislature has defined a time limit for anyone wanting to sue for defamation.
Under Florida Statute 95.11(4)(g), cases based upon libel or slander must be filed within two (2) years of the publication.
Also, a libel victim needs to be careful to meet the “single publication rule” of Florida Statute 770.07. There, the time deadline begins to run “…at the time of the first publication or exhibition or utterance thereof in this state.”
Does this include something published online? According to one Florida Court of Appeals, the answer is yes. See, Rudloe v. Karl, 899 So. 2d 1161 (Fla. Dist. Ct. App. 2005).
The bottom line here is don’t procrastinate if you think you have a defamation of character claim. The statute of limitation law is an absolute bar, no matter how seriously your reputation has been injured.
What Should You Do?
If you have been harmed by libel or slander then you may have a legal claim for damages against those who made the defamatory statements.
Under Florida law, each defamation of character case is different. Each bad act has to be evaluated not only on what was said or written, and where, and about whom the statements were made, but also in terms of damages. What damages can be presumed under the law? What damages must be proven with documented evidence? Are the damages larger enough to justify the time and expense of a lawsuit? Can the victim collect a judgment from the defendant? Does the defendant have assets? Does the wrongdoer have insurance? Is the wrongdoer asset protected?
If you believe you have a claim for defamation, a good piece of advice is to speak with an experienced Florida defamation lawyer to learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.