Defamation Per Se: When Libel or Slander Is So Bad, Do You Need Evidence of Damages Before Punitive Damages Can Be Awarded?
Posted By Alan Sackrin on June 6, 2013
Last Update: 11/16/16
Florida, along with the majority of states in this country, recognizes that there are some situations where the libel (a written communication) or slander (a spoken communication) is so bad, so obvious in how it hurts and harms someone, that the injured person need not provide as much evidence, or proof, of injury as other, less blatant situations might require.
In these cases, the statements rise to the definition of “defamatory per se,” and Florida has recognized these special kinds of slander and libel cases since 1887. In that year, the Florida Supreme Court found that defamation per se statements are so powerful in their ability to hurt someone that Florida would deem them to be presumed harmful as a matter of law. (See Montgomery v. Knox, 23 Fla. 595, 3 So. 211, 217 (1887).) In a defamation per se case, the judge will allow damages to be awarded in these cases even if no evidence of harm has been presented.
What is Defamation Per Se?
Traditionally, damages in a defamation per se case are simply assumed to exist and the court will not require any evidence to be provided before a money award can be given in certain, specific situations (meaning, the plaintiff does not have to prove special damages in order to be compensated – Special damages usually contemplate the loss to something that has economic value). Defamatory per se statements include those that:
- Hurt someone’s profession, office, business or trade;
- Falsely state a person has a socially unacceptable illness or disease (for example, a sexually transmitted disease (STD) or in some instances, a mental illness);
- Imputing serious sexual misconduct by a man or women; or
- Falsely state a person has been involved in some kind of criminal activity.
Does Florida Law Have Special Evidence Requirements for Defamation Per Se Cases?
Florida has singled out defamation per se cases for special treatment. For most damage claims, there’s no need for the plaintiff to prove malice on the part of the defendant (who spoke or wrote the words) in order to be compensated for the harmful communication (however, punitive damages are different – see below).
“[T]he law presumes malice in their utterance,” Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 592 (1906), where the words are “… of such common notoriety established by the general consent of men, that the courts must of necessity take judicial notice of its harmful effect.” Layne v. Tribune Co., 108 Fla. 177, 146 So. 234, 236 (1933).
Do Florida Defamation Per Se Cases Provide For Punitive Damage Awards?
In Florida, punitive damages are available to a plaintiff who can prove the defendant was guilty of malice with regard to the defamatory communications (written or oral). Generally, malice can be defined as reckless or careless indifference to a victim’s rights and feelings and can be based on spite, vengeance or bad motives.
The purpose of punitive damages is to deter the recurrence of certain behavior and to prevent other similar behavior.
No invoices, no lost profits, no lost monies, have to be shown to the judge or jury before a punitive damages award can be granted to a plaintiff.
As explained by a Florida court in a case of slander per se:
To sum up, Florida’s unusually high protection of personal reputation derives from the common consent of humankind and has ancient roots. It is highly valued by civilized people. Our state constitution and common law powerfully support it. This is a value as old as the Pentateuch and the Book of Exodus, and its command as clear as the Decalogue: “Thou shall not bear false witness against thy neighbor.”
The personal interest in one’s own good name and reputation surpasses economics, business practices or money. It is a fundamental part of personhood, of individual standing and one’s sense of worth. In short, the wrongdoing underlying the punitive damages in this case has Florida law’s most severe condemnation, its highest blameworthiness, its most deserving culpability. For slander per se, reprehensibility is at its highest.
What Should You Do?
A good piece of advice if you have been harmed by a defamatory communication and you think it rises to a defamation per se claim, is to at least speak with an experienced personal injury lawyer before you file a claim 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) to answer your questions.
- Florida Defamation of Character Lawsuits
- How To Recover Emotional Distress Damages Without a Physical Injury in Florida
- Can You Sue for a Bad Review? Sure. Libel, Slander, and Defamation Lawsuits for Negative Reviews
- Will An Insurance Policy Cover Damages for Libel or Slander? Defamation Claims are Personal Injury Claims That May Not Be Covered By Standard Coverage Policy
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.
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