Last Update: 7/28/19
When considering whether or not to file a lawsuit for defamation in the State of Florida, careful consideration must be made about (1) the testimony and documents available to prove the claim under state law, (2) the evidence needed to prove the damages being sought, as well as (3) the defenses that might be asserted once the case is filed.
If the defendant has a strong defense, then careful analysis must be made before filing a lawsuit. One issue in the balance, will the defendant be able to legitimately claim that the lawsuit is frivolous and therefore ask the court to assess attorney fees against the plaintiff?
Defenses to Defamation
There are several defenses to a lawsuit filed in Florida courts for defamation (libel or slander). These include:
1. Truth As A Defense – Threshold Requirements
The United States Supreme Court set this defense in stone decades ago in the landmark case of New York Times Co. v. Sullivan, 376 US 254 (1964): truth is a defense to libel and slander claims.
Later, the courts created the “substantial truth doctrine” for defamation claims. This doctrine sets a threshold needed to defend against a defamation case, as well as to prove one. The “substantial truth doctrine” states that if the “gist” of the statement at issue is true, then that will be enough for a defendant to prevail against a defamation claim for damages. See, Masson v. New Yorker Magazine, 501 U.S. 496, 517 (1991).
2. Defenses Set-Forth In Statutes And Recent Case Law
Experienced defamation defense attorneys commonly answer a defamation lawsuit with a litany of statutory and case law based defenses. These defenses include:
- The statements made regarding the plaintiff were made with good motives.
- The statements made regarding the plaintiff were made in good faith to those with a common interest in the subject of the statements.
- The defamatory posts are reposts or republications, and the defendant is not considered to be the publisher of those posts, as a
matter of law. (This is the defense under the Federal Communications Decency Act which states “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” – See 47 U.S.C. § 230(c)(1))
- The recipients of the allegedly defamatory posts reasonably should expect to treat the statements of evaluative, subjective beliefs, and not provable assertions of fact that can be the subject of a defamation claim.
- Defendant is liable only for its proportional share of the liability of all those who caused or contributed to plaintiff’s injuries and damages.
- Plaintiff failed to comply with the five day written pre-suit notice requirements of Florida Statute 770.01. This statute applies to media defendants and not common internet users. Meaning, private individuals who merely post messages on a website.
- The Plaintiff must prove actual or compensatory damages. If the plaintiff fails to do so, then only nominal damages may be awarded.
(Please note, some of these defenses relate to internet postings and will not apply to all defamation cases.)
1. Anti-SLAPP Laws
Across the country, state legislatures have passed laws to protect people from lawsuits that are filed with the intent to thwart someone exercising their free speech – even when the plaintiff knows that the case is not winnable in the long run. There are times when the strategy of burdening a person or an organization with a cumbersome and expensive defamation lawsuit seems smart because it can distract or financially drain them from public outcry or public criticism. These are known as bars against Strategic Lawsuits Against Public Participation or “anti-SLAPP” statutes.
- In Florida, for example, there are Anti-SLAPP laws in place to protect citizens who are protesting from being thwarted by a defamation lawsuit filed by a governmental unit. Florida Statute 768.295 is more commonly known as the “Citizen Participation in Government Act.”
- Another Florida Anti-SLAPP law appears in Florida Statutes 720.304(4), where homeowners are dealing with homeowners’ associations.
2. Missing the Deadline to File the Lawsuit Bars the Claim
No one has an unlimited amount of time to file a civil action for damages; state legislatures pass laws that set time deadlines for claims to be filed as lawsuits, for among other reasons, to make sure that witness’s memories will be reasonably fresh and pertinent paperwork will be available.
These laws are called “statutes of limitations.”
The Florida Statute of Limitations for filing a civil lawsuit seeking damages for defamation sets the deadline for filing a defamation lawsuit in Florida at two (2) years. See, Florida Statute 95.11(4)(g).
If the party seeking to file a defamation lawsuit in Florida files the case after this time period has passed, it does not matter how formidable the evidence may be — or how horrid the defamation itself: the limitations deadline will absolutely BAR the claim.
(Please Note: These are not the only defenses that may be asserted in a defamation case; however, these are some of the most common arguments made in Florida courts. Each case is different, and each case must be evaluated based on its own merits. Nowadays, damage awards in libel and slander actions can be high.)
What Should You Do?
A good piece of advice if you have been harmed by defamation or are being sued for defamation, is to speak with an experienced personal injury 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 all of the available defenses. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.
- Defamation Per Se: When Libel or Slander Is So Bad, No Evidence is Needed of Damages Before Punitive Damages Can Be Awarded
- 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.