As a preliminary matter, Defamation Slander (Libel) and the process to pursuit a defamation claim is oftentimes different from one state to another, and even differently applied from County to County. This article is applicable only to the State of Florida, and in particular, the law of the 5th District Court of Appeals which encompasses most of Central Florida including Orange County, Brevard County and Volusia County, as well as the Cities of Orlando, Melbourne, Palm Bay and Daytona.
Defamation Law is complex and varies from Jurisdiction to Jurisdiction. The main areas of defamation include:
What is Defamation?
Defamation, in its simplest form is a false statement that causes damages. Defamation is typically composed of two separate causes of action: Libel and Slander. Libel is defamation expressed in print, writings, emails, web pages, tweets, pictures, or signs. In its most general sense, it is often classified as any publication that is injurious to the reputation of another. Slander, on the other hand, are words which are uttered to falsely prejudice another in his reputation, community standing, or means of livelihood. Because the Plaintiff is required to prove each and every element of a defamation case, slander cases tend to be harder to prove as slander involves a spoken word, while libel has the benefit of having the document or publication at the easy grasp of the Courts, parties and witnesses.
Often misunderstood, is what constitutes a false statement. For instance, an opinion is not a false statement. Someone can have an opinion and state it to a third person. For instance, a former employer may legally tell a future employer or a current employer of an employee that the former employee was a “bad employee and inefficient.” This is an opinion statement which is not actionable. However, if the former employer states that the employee committed theft during his employ, if such statement is false, and can be proven, then such a statement may be actionable, particularly if such statement causes harm to the employee such as a loss of job, or loss of opportunity to be hired.
Defamation can occur in everyday life. Particularly where the defamer has malice towards an individual or corporation. Yes, a corporation or business can also be the bearer of defamation. Making a false statement about a business in order to further your own interests may be actionable. Another common context is malicious neighbors defaming an individual, and just plainly crazy people who will say and do anything to cause malicious harm at the expense of another.
Words and statements can hurt, and if false, it may be actionable. Important to note, that there are a lot of protections for the media, politicians and government workers from being sued for Defamation. This is called qualified immunity or absolute immunity which tends to mean that a lot of professions are protected from being sued for defamation. Absolute immunity, such as the immunity enjoyed by the judiciary, witnesses under certain situations, and members of congress, can get away with a lot of defamatory statements even if untrue and even if made with malice. The qualified and absolute immunity laws to defamation claims are complex and require a careful legal analysis by a qualified attorney in order to ascertain if the particular facts of a case is actionable. In addition to immunity, stating defamation about certain public figures or figures of public interest, have additional protections.
In law, to prove a case, attorneys speak of the prima facie elements of a claim. The prima facie elements of a claim are the steps that must be proven in order to have an ultimate disposition of the case by the finder of facts. The finder of facts, in a defamation case, is often a Jury made up of six members of the community who will determine the facts and determine who is truthful. However, not all cases make it to a jury, specially, if the prima facie elements cannot be made. When such is the case, a Court may dispose of the case summarily through Summary Judgment.
In Florida, the prima facie elements for a defamation case that must be proved by the plaintiff are:
- a false and defamatory statement concerning another;
- an unprivileged publication to a third party;
- fault amounting at least to negligence on the part of the publisher;
- either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
The last element, special damages, may be summarized as “damages, either presumed or proved,” and includes four classes: nominal, general, special, and emotional or bodily harm or injury.
Typically, there are no provisions for attorney fees in defamation cases which means the Plaintiff usually bares the cost of litigation. Additionally, most defamation cases are brought against individuals which makes collections against individuals difficult due to bankruptcy law protections. Most Plaintiffs are interested in having the defamatory statements stop, and, if you have already tried a cease and desist letter, litigation may be your last option.
It you believe you have a defamation case and you wish to pursue further, it is critical for you to seek the advice of competent counsel as, in addition to having complex applications to the laws, there are strict Statute of Limitations. Which means, that if you do not bring your claims within a specific period of time, then you may lose the claim forever. Because there are different types of defamation cases in different jurisdictions, there are different statute of limitations. Usually, a defamation case is barred after two years; however, some defamation cases may require you to assert your rights within 60 days of the false statement or even less if governed by a bona fide administration process or collective bargaining agreement.