Defamation In Florida

Defamation can either be published or communicated in writing (called “libel”), or verbally (called “slander”).  While both commonly occur in society, “libel” cases are far more common, simply because verbal “slander” is often more difficult to prove.

The first step in evaluating whether a statement constitutes defamation is to examine the content of the statement itself.  An opinion (e.g., “In my opinion, this restaurant has bad food.”) – which is not a fact – is typically not defamation.  Most opinion is speech protected by the First Amendment of the United States Constitution.  Defamation is based in state law, which is trumped, or “pre-empted,” by the United States Constitution.

A defamatory statement must be false.  Even a statement that may be harmful to one’s reputation, if true, does not constitute defamation.

Higher standards apply to public figures (i.e., celebrities) bringing a defamation claim.  Private figures must only prove negligence by the party who published or communicated the statement; however, public figures need to prove “actual malice,” or a reckless disregard for the truth or falsity of the statement (a higher standard than proving negligence).

Defamation per se are certain statements that are deemed so inherently injurious that damages to the subject-person’s reputation are presumed.  Florida has several categories of statements that constitute defamation per se, including statements that someone was involved in a crime; has a contagious disease; and statements which tend to injure a person in their business, trade or profession.

Defamation claims in Florida have a relatively short statute of limitations.  Claims must be filed within two years of the publication or communication of the defamatory statement.  If you believe that a false, defamatory statement of fact has been published or communicated about you, please contact an experienced defamation attorney who may be able to help.

Florida follows the single publication rule.  Pursuant to this rule, a party that causes the mass publication of defamatory content may only be sued once for its initial publication of that content.  For example, if a newspaper or magazine publishes a defamatory article that is circulated to thousands of people, the newspaper or magazine may only be sued once.  The Statute of Limitations (discussed above) begins to run at the time of first publication.

The act of republication resets the Statute of Limitations for defamation claims.  This is an exception to the single publication rule.  When determining whether material has been republished, Courts examine whether the republication was intended to and actually reached new audiences.  Other factors that Courts may examine include whether the second publication was made on an occasion distinct from the first publication and whether the defamatory content has been modified between publications.

If a statement is privileged or a defense applies, the maker of that statement may be immune from any lawsuit arising out of those privileged statements.  Below are common privileges and defenses that are asserted in defamation lawsuits.

Absolute Privilege

Statements protected by absolute privilege allow the maker to be free from all liability surrounding those statements.  In other words, the maker is seen as having the right to make the statement, regardless of the impact.  This privilege applies to defamatory statements made during judicial proceedings so long as it is part of the litigation.

Qualified Privilege

Qualified privilege does not grant the maker automatic immunity.  For a statement to qualify for this privilege, there must be proof that the person who made the statement did so with malice, hatred, spite, ill will or resentment, or that the person who made the statement acted intentionally or recklessly.

Generally, damages for defamation claims are proportionate to the harm suffered by the plaintiff.  Categories of damages for defamation claims in Florida may include compensatory damages and punitive damages.

Compensatory Damages

Compensatory damages, also known as actual damages, are awarded to compensate for actual harm resulting from the defendant’s defamation.  Some types of actual harm include lost wages, lost future earnings, lost economic opportunity, lost business and lost future employment opportunity.  While calculating compensatory damages depends on the facts and circumstances of a particular case, they can usually be calculated by the difference between the actual earnings and projected earnings that resulted from the defamation.

Punitive Damages

Plaintiffs can seek punitive damages in defamation claims.  Punitive damages are intended to punish the defendant and deter them from repeating the defamatory conduct, rather than to compensate the plaintiff.  To receive punitive damages, the plaintiff must establish the defamer acted with fraud or malice.  The amount in punitive damages depends on several factors, such as degree of defendant’s malice or wanton or willful conduct.  Florida requires a showing of “express malice,” or malice that considers the defamer’s feelings towards the plaintiff, as opposed to knowledge of the publication’s untruthfulness.  Army Aviation Heritage Foundation and Museum, Inc. v. Buis (N.D. Fla. 2007) 504 F.Supp.2d 1254, 1266.