Defamation In Miami

What is Defamation?

Defamation is the publication or communication of a false statement of fact about a person to a third party, which causes harm to the subject-person’s reputation or constitutes defamation per se (more on that below), without privilege or the subject-person’s consent.

Defamation is a very fact-specific claim.  Not all statements made, even some that harm another person’s reputation, constitute defamation.

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Format – Writing or Verbal

Defamation can be 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.

Content - Facts, Not Opinions

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 food that does not taste very good.”) – 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.)

Content - False Statement, Not True Statement

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

Who Is The Injured Party?

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).

What Is Defamation Per Se?

In Florida, defamation per se refers to statements that are considered so inherently harmful that damages to the plaintiff’s reputation are presumed without the need for specific proof.  The types of statements that typically fall under defamation per se include those that:

  • Accuse someone of committing a crime;
  • Accuse someone of having a loathsome disease;
  • Accuse someone of engaging in behavior incompatible with their business, trade or profession; or
  • Accuse someone of engaging in sexual misconduct.

Florida Statutes do not provide a specific statute titled “Defamation Per Se,” but Florida courts have established these categories through case law.  In cases of defamation per se, the plaintiff does not need to prove actual damages, as they are presumed by the nature of the defamatory statement.

Statute Of Limitations

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.

The Single Publication Rule

​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.

Republication, An Exception To The Single Publication Rule

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.

Below are a few examples where a Court has found in favor of republication and did not apply the single publication rule:

The maker repeated a defamatory statement in a later edition of a book, magazine or newspaper.

The maker rebroadcast defamatory material on a television.

The maker caused articles to be published in morning and afternoon editions of the same newspaper.

Are The Statements Privileged?

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. In order for a statement to qualify for this protection, the statement must first be made by an individual participating in a public function. Examples of public functions are judicial, legislative or executive proceedings. Second, the person at whom the statement is directed must have the opportunity to challenge the statements. For example:

In Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla. 1994), the Florida Supreme Court (Florida’s highest appellate court) held that defamatory statements made during judicial proceedings are absolutely privileged as long as they are relevant to the case at bar. The Court explained that “participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim.”

In McCullough v. Kubiak, 158 So.3d 739, 740 (Fla. 4th DCA 2015), the District Court of Appeals for the Fourth District of Florida held that a defamatory statement made during a deposition of a non-party witness was absolutely privileged.  The Court ruled that because the statements were made during the course of a judicial proceeding and were relevant to the settlement negotiations in that proceeding, the statements were absolutely privileged.

Qualified Privilege

Qualified privilege offers less protection than absolute privilege.  Qualified privilege does not grant the maker automatic immunity.  For a statement to qualify for this privilege, there must be a finding of the following: “(1) good faith; (2) an interest to be upheld; (3) a statement limited in its scope to this purpose; (4) a proper occasion; and (5) publication in a proper manner”.  Axelrod v. Califano, 357 So.2d 1048, 1051 (Fla. 1st DCA 1978).

Qualified privilege generally applies when an authority figure makes a statement of public interest.  This includes media reports on government proceedings and statements made to a government agency about a public issue.

Common Interest

To obtain protection under the common interest privilege, there must be a showing that the defamatory state was made by a person having a duty or interest in the subject matter to another having a corresponding duty.  In the context of business matters, the defamatory statement must be in relation to the business, made by one having an interest in the business, and only to others having an interest in the business.  Axelrod, 357 So.2d at 1051.

In Diaz v. Miami-Dade County, 424 F. Supp. 3d 1345, 1364, (S.D. Fla. 2019), aff’d, 849 F. App’x 787 (11th Cir. 2021), a Miami-Dade Police Officer brought a defamation claim against a fellow officer, Rosen, after Rosen accused him of stealing money from crime scenes to their department.  The Court held that Rosen was protected by the common interest privilege because Rosen and the police department had “corresponding duties or mutuality of purpose.”

Fair Comment Privilege/Fair Report Privilege

In Florida, a defamation lawsuit cannot be sustained against news organizations that accurately report on information received from government officials. In Woodard v. Sunbeam Television Corp., 616 So.2d 501, 502 (Fla. 4th DCA 1993), the Court explained that the fair report privilege “includes the broadcast of the contents ‘of an official document, as long as their account is reasonably accurate and fair,’ even if the official documents contain erroneous information.”

In Stewart v. Sun Sentinel Co., 695 So.2d 360, 362 (Fla. 4th DCA 1997), the Court held that a newspaper, television station, and their reporters were shielded from defamation liability by the fair reporting privilege in a case brought by corrections officers.  This case stemmed from the media coverage of an investigation into the beatings of jail inmates by corrections officers.  The Court further noted that the privilege applied because there were no material differences between the defamatory information and the official documents.

Truth

Truth is an absolute defense to defamation.  In other words, the maker cannot be held liable for saying things that are actually true.  The party asserting the defense bears the burden of showing the truthfulness of those statements.

Statements can also be defended as being substantially true.  In Woodard, the Court discussed the “substantial truth doctrine”.  This doctrine considers whether the statement, as published, would have a different impact on the reader or listener than the truth.

In Readon v. WPLG, LLC, 317 So.3d 1229, 1235 (Fla. 3d DCA 2021), a pastor asserted that because WPLG, a South Florida news station, stated that Readon sent a picture of a dead body to a federal prosecutor without clarifying that the prosecutor was acting in the capacity of a guardian ad litem, the statement would have a different effect on the mind of the viewers.  The Court rejected this defamation claim as the lack of clarification “did not affect the gist of the story by creating a different impression in the mind of the viewer”.

Damages

Generally, damages for defamation claims are proportionate to the harm suffered by the plaintiff. The three types of damages for defamation claims are compensatory damages, nominal damages, and punitive damages.

Compensatory Damages

Compensatory damages are awarded to compensate for actual harm resulted from the defendant’s defamation. Some types of actual harm include impaired reputation and standing in the plaintiff’s community, personal humiliation, mental anguish and suffering, loss of employment opportunities, and the cost of trying to mitigate the harm from defendant’s libel. There are two types of compensatory damages – (1) special damages and (2) general damages.

Special damages are based on economic harm where there are losses or injuries to the plaintiff’s property, business, occupation or profession. To claim special damages, the specific amount of economic harm must be identified.

General damages are for other damages that are not under special damages. The amount of general damages may be difficult to assess and the jury generally has the discretion to determine the award amount after weighing all the facts.

Nominal Damages 

In defamation per se claims, a plaintiff may be able to recover nominal damages even if the plaintiff does not show any actual injury resulted from the defamation per se.  Nominal damages are small monetary awards to vindicate a plaintiff’s good name.

Punitive Damages 

Plaintiffs can seek punitive damages in defamation claims. Punitive damages are intended to punish the defendant and meant to deter the defendant from repeating the defamatory conduct. The amount in punitive damages depend on several factors, such as degree of defendant’s malice or wanton or willful conduct.

Keep in mind, the damages a plaintiff may seek depends on the type of defamation, whether the plaintiff is a public or private figure and whether the defamatory statement is related to a private or public concern. For example, in Wal-Mart Stores, Inc. v. Kordon, 656 So.2d 528, 529 (Fla. Dist. Ct. App. 1995), the Court held that a defamation claim, where defamation involves a private person and a private matter, requires a showing of malice.  In other words, a private person seeking punitive damages for defamation must show the defendant’s defamatory statement constitutes “willful, wanton and intentional misconduct.”

Media Defendants

Under Florida law, a prospective plaintiff is required to give a media defendant notice five days before initiating a civil action for defamation. § 770.01, Fla. Stat. (2023). The notice must specify the alleged false and defamatory statements contained in the article or broadcast. Further, section 770.02, limits the amount of damages a plaintiff may recover where: (1) the statements were published in good faith; (2) the statements were false due to an honest mistake of facts; (3) there were reasonable grounds for believing the statements were true; and (4) a full and fair correction, apology, or retraction was published or broadcast within a specific time period.

Florida courts have interpreted these conditions to be necessary protections to ensure the delicate balance between preventing tortious injury resulting from defamatory statements and protecting the constitutional right to free speech.

The notice requirement is a condition precedent. That is, failure to give notice could result in a dismissal of a later lawsuit.

Conclusion

If you would like more information on defamation – either because you want to pursue a defamation claim or want to defend against an existing claim – please contact a member of our team today.

Romano Law can provide guidance on defamation in New York, California and Florida.

 

Photo by aurora.kreativ on Unsplash

 

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