Note: This page covers information specific to Florida. For general information concerning defamation, see the Defamation Law section of this guide.
Elements of Defamation
Under Florida law, the elements of a defamation claim are:
- the defendant published a false statement;
- about the plaintiff;
- to a third party; and
- the falsity of the statement caused injury to the plaintiff.
Border Collie Rescue v. Ryan, 418 F.Supp.2d 1330, 1348 (M.D.Fla. 2006). A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence. The elements of a defamation claim in Florida are similar to the elements discussed in the general Defamation Law section, with the following exceptions:Defamation Per Se
In Mid-Florida Television Co. v. Boyles, 467 So.2d 282 (Fla. 1985), the Florida Supreme Court ruled that the state no longer recognizes presumed damages for defamation per se in lawsuits against media defendants. (Defamation "per se" refers to a legal doctrine which holds that some statements of fact are so egregious that a court will presume that they harmed the plaintiff's reputation.) The CMLP is not aware of any Florida cases deciding whether a blogger or non-traditional journalist is a "media defendant" for purposes of applying this rule. In cases involving matters of purely private concern, a Florida court could still presume damages based on defamation per se. In Florida, a statement amounts to defamation per se if it accuses the plaintiff of committing a crime or imputes to the plaintiff conduct, characteristics, or a condition incompatible with the proper exercise of his or her lawful business, trade, profession, or office.Public and Private Figures
Florida has a broad conception of public officials, a category of government actors who must prove actual malice in order to prevail on a defamation claim. The Florida Supreme Court found a police officer to be a public official where he was a "highly visible representative of government authority who has power over citizens and broad discretion in the exercise of that power." Smith v. Russell, 456 So.2d 462 (Fla. 1984). Florida courts have found that a corrections officer, an administrator of large public hospital, and even a harbormaster were public officials.Criminal Libel
Unlike most states, Florida still recognizes criminal libel. Chapter 836 of the Florida Statutes does not define the elements of criminal libel, but it does specifically prohibit false statements that harm a bank or other financial institution's reputation or accuse a female of being unchaste. To the extent that the statute remains valid, criminal libel is a first-degree misdemeanor. However, a Florida appeals court found Fla. Stat. § 836.11 -- which deals with anonymous defamation of individuals or religious groups -- to be unconstitutional. State v. Shank, 795 So.2d 1067 (Fla.Ct.App., 4th Dist. 2001).Actual Malice and Negligence
In Florida, a private figure plaintiff bringing a defamation lawsuit generally must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.
Privileges and Defenses
Florida courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, the fair report privilege, and the wire service defense. The Florida Supreme Court has not explicitly recognized the neutral reportage privilege, but lower court cases have recognized it.
There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
Neutral Reportage Privilege
The Florida Supreme Court has not formally recognized the neutral reportage privilege, but there are indications that Florida would recognize it. Two lower court cases have endorsed the privilege. See Smith v. Taylor County Pub. Co., 443 So. 2d 1042, 1044 (Fla. 1st DCA 1983); Huszar v. Gross, 468 So. 2d 512, 515 (Fla. 1st DCA 1985). Both cases recognized the privilege even in instances where the plaintiff is a private figure. The Court of Appeals for Florida's Third District spoke favorably of these cases. See Brake & Alignment Supply Corp. v. Post-Newsweek Stations of Florida, Inc, 472 So. 2d 517, 518 (Fla. 3rd DCA 1985).
Statute of Limitations for Defamation
Florida's statute of limitations for defamation is two (2) years. See Fla. Stat. § 95.11(4)(g).
To our knowledge, Florida appellate courts have considered the application of the single publication rule to the Internet on only one occasion, in Rudloe v. Karl, No. 1D03-4651 (Fla. Dist. Ct. App. Nov. 5, 2004). In that opinion, the District Court of Appeal for the First District wrote that the single publication rule applies to Internet content, and that the statute of limitations does not reset every time that a new user accesses allegedly defamatory material. However, after a rehearing, this opinion was withdrawn by the court and superseded by an opinion that did not address statute of limitations issues. Accordingly, while the original opinion might suggest the manner in which Florida courts would apply the single publication rule to online speech, the opinion itself has no precedential value and should not be cited in court. If you are aware of any additional Florida cases that address the single publication rule in the Internet context, please notify us.