MIAMI BUSINESS LITIGATION: DEFAMATION

            A defamation claim can be a powerful tool for businesses to protect their reputations from false statements made by former customers or employees. There are many scenarios where asserting a defamation claim can be useful. A business may assert a defamation claim against a former employee or customer who published a false statement or review online about the business. A business may also assert a defamation claim against an owner for making a false statement about his ability bind the company to certain liabilities. Under both scenarios (and many others), a business can sue to recover damages resulting from the false statement. The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

“Defamation (libel and slander) may generally be defined as the unprivileged publication of false statements which naturally and proximately result in injury to another.” Byrd v. Hustler Magazine, Inc., 433 So. 2d 593 (Fla. 4th DCA 1983). To prove defamation, a plaintiff must establish five elements: (1) publication; (2) falsity; (3) knowledge or reckless disregard as to the falsity on a matter concerning a public official or at least negligent disregard on a matter concerning a private person; (4) actual damages; and (5) the defamatory nature of the statement. Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008). The “publication” element does not require the false statement to be printed. Instead, publication is satisfied when the false statement is made to a third person. Am. Airlines, Inc. v. Geddes, 960 So. 2d 830 (Fla. 3d DCA 2007). The defamatory element is satisfied if the statement “tends to harm the reputation of another as to lower him or her in estimation of community or deter third persons from associating or dealing with the defamed party.” LRX, Inc. v. Horizon Associates Joint Venture ex rel. Horizon-ANF, Inc., 842 So. 2d 881 (Fla. 4th DCA 2003).

Defamation claims fall into two categories, “defamation per se” and “defamation per quod.” Defamation per se claims are more serious because courts presume the statements harmful as a matter of law.  Defamation per se occurs when the false statement pertains to an infamous crime; (2) pertains to an infectious disease; (3) subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) tends to injure one in his or her trade or profession. Richard v. Gray, 62 So. 2d 597 (Fla. 1953). Florida considers these false statements so odious that it relieves the plaintiff of the obligation to prove the damages element. Mid-Fla. Television Corp. v. Boyles, 467 So. 2d 282 (Fla. 1985). Thus, the plaintiff can obtain “at least nominal damages.” Myers v. Jim Russo Prison Ministries, Inc., 3 So. 3d 411 (Fla. 2d DCA 2009). Conversely, defamation per quod statements are not facially defamatory. These false statements “require[ ] additional explanation of the words used to show that they have a defamatory meaning or that the person defamed in the plaintiff.” Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d 451 (Fla. 5th DCA 1999). Consequently, the plaintiff must prove it was damaged by the defamatory per quod statement to recover from the defendant.

            There are two common defamation defenses – truth and opinion. Truth is an absolute defense to defamation if the statement is substantially true. The statement “does not have to be perfectly accurate if the ‘gist’ or the ‘sting’ of the statement is true.” Readon v. WPLG, LLC, 317 So. 3d 1229 (Fla. 3d DCA 2021). Pure opinions are also not defamatory because they are protected by the First Amendment. “A statement is ‘pure opinion’ only if the speaker states the facts on which he bases his opinion.” Lipsig v. Ramlawi, 760 So. 2d 170 (Fla. 3d DCA 2000).

If a business is grappling with false statements online or in person, a defamation claim could provide that business with a remedy.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.