We all remember back in high school when rumors were spread, and they were completely untrue. Today, those rumors and lies are spread online on sites like Yelp and LinkedIn. These rumors and lies can in turn not only hurt your feelings and reputation, but also impact your business. In Florida, causes of action exist for defamation, libel, and slander that may help you recover from these lies and rumors. In order to prove a case for defamation in Florida, one must prove the following elements:
- A statement of fact (as opposed to opinion);
- A defamatory effect from the statement;
- Identification of the plaintiff as the subject;
- Publication to a third person;
- Compensable damages to the plaintiff;
- Falsity of the statement; and
- Requisite fault by the defendant.
Defamatory language is language that tends to adversely affect one’s reputation. This may result from impeaching the individual’s honesty, integrity, virtue, or sanity. A statement of fact may always be defamatory. However, a statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. For example, a statement like “I would not trust X around the cash register” implies personal knowledge of dishonest conduct by X, and thus may be actionable.
Individuals and corporations, unincorporated associations and partnerships may be defamed. A statement is not actionable until there has been a publication. The publication requirement is satisfied when there is a communication to a third person who understood it. General (or presumed damages) need not be proved by the plaintiff in a defamation case. They are intended to compensate the plaintiff for the general injury to their reputation caused by the defamation. Special damages in a defamation case means that the plaintiff must specifically prove that they suffered pecuniary (or monetary) loss as a result of the defamatory statement’s effect on their reputation. This can be proved by a loss of a job, an advantageous business relationship or customers.
Libel is a defamatory statement recorded in writing or some other permanent form. A libel may also be recorded by radio or television in some circumstances. Unlike other states, Florida does not permit presumed damages in libel cases; some evidence of actual injury must be established.
Slander is spoken defamation. This is distinguishable from libel in that the defamation is in less permanent and less physical form. Where the original defamation may be libel, any repetition, even if oral, is also libel. However, the written repetition of a slander will be characterized as libel. In slander actions, special damages are normally required. In other words, injury to reputation is not presumed like it is in libel and defamation. However, if the spoken defamation falls within one of four categories, an injury to reputation is presumed without proof of special damages. These include:
- Business or Profession – a defamatory statement adversely reflecting on the plaintiff’s abilities in their business, trade, or profession is actionable. Statements that the plaintiff is dishonest or lacks the basic skill to perform their profession is an example.
- Loathsome Disease – a defamatory statement that the plaintiff is presently suffering from a foul or loathsome disease is actionable.
- Crime Involving Moral Turpitude – a defamatory statement that the plaintiff is or was guilty of a crime involving moral turpitude (assault, larceny, perjury, fornication, adultery) is actionable.
- Unchastity of a Woman – a defamatory statement imputing unchaste behavior to a woman is actionable.
The laws of defamation, libel, and slander are different for public officials or public figures. The Supreme Court altered these laws based on the First Amendment right to freedom of speech. A public official may not recover for defamatory words relating to his official conduct in the absence of clear and convincing proof that the statement was made with malice. New York Times v. Sullivan, 376 U.S. 254 (1964). The Supreme Court extended this malice requirement to public figures in Associated Press v. Walker, 388 U.S. 130 (1967) and Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). A person is deemed a public figure if (1) he has achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and contexts (celebrities or sports figures); or (2) where he voluntarily assumes a central role in a particular public controversy (i.e. a prominent community activist) and thereby becomes a public figure for that limited range of issues. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Malice is defined as (1) knowledge that the statement was false, or (2) reckless disregard as to its truth or falsity.
There also exists in the law certain defenses to defamation cases. Consent is a complete defense to a defamation action. Truth is likewise always a defense, however the defendant must prove that the statement was true. Certain speakers are not liable for defamatory statements due to an absolute privilege. These include:
- Judicial Proceedings – All statements made by a judge, jurors, counsel, witnesses, or parties in judicial proceedings are absolutely privileged.
- Legislative Proceedings – All remarks made by either federal or state legislators in their official capacity during legislative proceedings are absolutely privileged.
- Executive Proceedings – A governmental executive official is absolutely privileged with respect to any statement made by them while exercising the functions of their office.
- Compelled Broadcast or Publication – A radio or TV station compelled to allow a speaker the use of the air, a newspaper compelled to print public notices, etc., is absolutely privileged in an action based on the content of the compelled publication.
- Communications Between Spouses – Communications from one spouse to another are generally treated as being absolutely privileged.
While defamation is considered to be part of personal injury law (according to U.S. common law), it is very difficult to prove defamation in a personal injury case. This is because a number of actions are protected by the first amendment of the U.S. constitution, i.e., freedom of speech. In addition, there are a number of ways a defendant can avoid liability, e.g., truth, qualified privilege, absolute privilege. Plus, the burden of proof of damages can be insurmountable. Lastly, anti-SLAPP (strategic lawsuits against public participation) laws can stop a defamation lawsuit in its tracks, making it next to impossible to win even if you’re in the right.