DEFAMATION, SLANDER & LIBEL
Defamation (libel and slander) are generally defined as the unprivileged publication of false statements which naturally and proximately result in injury to another. A false statement of fact is the key requirement to win a defamation case. So the five elements of a defamation case are: (1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory.
Publication is required because a statement does not become possible defamation until it is published or communicated to a third person. Publication is exposing the statement to the public (not that anyone actually reads or hears it).
The “falsity” requirement means, first and foremost, that the defamation be about the plaintiff and that it is not true.
The defendant must have acted with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person.
Free speech issues are implicated (depending upon the status of the plaintiff or defendant), so defamation law is overlaid with statutory and constitutional requirements and limitations.
“Defamatory” is best understood in light of five fundamental principles.
First, an allegedly defamatory statement must be considered in its totality, not merely a particular phrase or sentence. For example, articles are to be considered with their illustrations; pictures are to be viewed with their captions; stories are to be read with their headlines. Second and third, where the court finds that a communication could not possibly have a defamatory or harmful effect, the court is justified in dismissing the complaint, and the trial court must evaluate the publication, not by extremes, but as the common mind would naturally understand it.
So the statement should be considered in its natural sense without being forced or strained construction. Fourth, sufficient prejudice is shown if the expression is proven to make the plaintiff an object of hatred, distrust, ridicule, contempt or disgrace in the eyes of a substantial and respectable minority of the community so as to suffer injury in his or her personal, social, official, or business relations. It is enough that the communication would tend to prejudice the plaintiff in the eyes of a substantial and respectable minority of the community and need not entail universal hatred. Fifth is whether the expression should not be labeled defamatory in light of laws, relationships and constitutional rights granting freedom of expression. Relationships, such as functioning as an officer of the court or a fiduciary, may privilege the speaker to refer to another in a derogatory or defamatory manner.
The Florida and federal constitutional right to free speech means certain expressions cannot be found to be defamatory. Under the First Amendment there is no such thing as a “false idea.”Therefore, a statement of opinion might be privileged. A privileged expression of pure opinion occurs when the defendant makes a comment or opinion based on facts which are set forth in the article or which are otherwise known or available to the reader or the listener as a member of the public. Likewise, a claim as simple exaggeration is not defamatory.
An otherwise defamatory statement is not a basis for a lawsuit if the speaker or publisher had an absolute privilege to make the defamatory statement. Privilege is one of the defenses discussed below.
The statute of limitations for any claim of defamation is two years in Florida. This is true for libel, for slander, and for defamation by implication. The limitations period begins to run when the last element constituting the cause of action occurs.
Privilege can make an otherwise defamatory statement not a basis for a lawsuit, if the speaker or publisher had a legal privilege to make the defamatory statement. A privilege is a defense to defamation that may arise from laws, relationships or constitutional rights granting freedom of expression. Examples of relationships creating privilege include functioning as an officer of the court or as a fiduciary. An example of a constitutional privilege is that the expression of a true idea cannot be found to be defamatory. A statement of opinion is not ordinarily actionable under defamation. A statement is pure opinion, as a matter of law, when it is based on facts which are otherwise known or available to the reader or listener.
In determining whether or not a communication is privileged, the nature of the subject, the right, duty, or interest of the parties in such subject, the time, place, and circumstances of the occasion, and the manner, character, and extent of the communication, should all be considered. When all these facts and circumstances are conceded, a court may decide whether a communication is a privileged one, so as to require the plaintiff to prove express malice.
Pure opinion is a defense to defamation, which occurs when defendant makes a comment or opinion based on facts which are set forth in the article or which are otherwise known or available to the reader or the listener as a member of the public.87 Although pure expression of opinion is constitutionally protected, mixed expression of opinion is not. A mixed expression of opinion exists when a published statement containing the opinion is made and is not based on facts set forth in the article, or assumed facts and, therefore, implies the existence of some other undisclosed facts upon which the opinion is based.
Florida Statutes provide protection for a good faith report of potential child abuse, abandonment, or neglect. Any person reporting in good faith any instance of child abuse, abandonment, or neglect to any law enforcement agency is immune from civil liability that might otherwise result by reason of such action. However, that immunity does not extend to the person suspected of having abused, abandoned, or neglected the child. Nor does it extend to any person who committed any illegal act upon or against the child.