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defamation

Pre-Suit Notice Condition Precedent Requirement before Suing News Media for Defamation Not Extended to Books and Movies

Posted by David Adelstein on July 13, 2019
Trial Perspectives / Comments Off on Pre-Suit Notice Condition Precedent Requirement before Suing News Media for Defamation Not Extended to Books and Movies

 

Florida Statute s. 770.01 contains a pre-suit notice condition precedent requirement before a person can sue the news media for defamation.  It provides:

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory. 

In a recent opinion, Mazur v. Baraya, 44 Fla. L. Weekly D1795b (Fla. 2d DCA 2019), the issue was whether this pre-suit notice condition precedent requirement extended to alleged defamation in books and movies.  The plaintiff in this case sued book publishers and move production companies over his false portrayal in books and movies.  The Second District Court of Appeal, affirming the trial court, held that it did not apply to books and movies.  “Florida courts have consistently interpreted section 770.01 to apply only to news media, i.e., the press.”  Mazur, supra (explaining pre-suit notice requirement is meant to apply to the free press that publishes news quickly since they can issue retractions quickly as provided for in Florida Statute s. 770.02 to mitigate damages).   Although the statute includes the language “or other medium” (underlined above), it still applies to the news media with this language designed to “cover new technologies used to disseminate the news, such as internet publishers and blogs.”).  Id. “Although books and movies may address topics of public interest, they are not part of the traditional news media press….”  Id.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Asserting Basis for Punitive Damages against Corporate Entity

Posted by David Adelstein on May 19, 2019
Trial Perspectives / Comments Off on Asserting Basis for Punitive Damages against Corporate Entity

A defamation claim can serve as a basis to amend a complaint to add punitive damages.   From prior articles (here or here) you know that asserting a basis for punitive damages is not made as of the date the lawsuit is filed.  Rather, a plaintiff must comply with the statutory, procedural requirements and move to amend to assert punitive damages by proffering evidence that there is “a reasonable showing by evidence in the record…which would provide a reasonable basis for recovery of such damages.”  Fla. Stat. s. 768.72(1).  

There are times a plaintiff wants to attribute an employee’s defamation of character to that employee’s company.  The employer is likely the deep pocket so punitive damage against the employer carries much more weight than suing the employee, individually, for punitive damages.

If a plaintiff wants to add a punitive damages claim against a corporate entity based on an employee’s conduct, a reasonable showing must be made that:

(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;

(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or

(c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

Tallahassee Memorial Healthcare, Inc. v. Dukes, 44 Fla. L. Weekly D1306c (Fla 1stDCA 2019) quoting Fla. Stat. s. 768.72(3).

Therefore, if you want sue a corporate employer –the deep pocket–for the defamation committed by an employee and assert a basis for punitive damages, you will need to proffer evidence establishing a reasonable showing that corporate management “actively and knowingly participated in such conduct [or] knowingly condoned, ratified, or consented to such conduct [or] engaged in conduct that constituted gross negligence that contributed to the loss…suffered by the claimant.” 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Defamation Per Se Opens Door for Punitive Damages

Posted by David Adelstein on February 18, 2018
Trial Perspectives / Comments Off on Defamation Per Se Opens Door for Punitive Damages

A defamation per se action opens the door for punitive damages even if actual damages cannot be shown or proven.  Lawnwood Medical Center, Inc. v. Sadow, 43 So.3d 710, 729 (Fla. 4th DCA 2010).   This is because malice is presumed and, thus, the statements are presumed harmful as a matter of law.  Id.  However, “proof of liability for defamation per se requires a showing that the declarant knew or should have known the defamatory statement was not true.”  Tilton v. Wrobel, 198 So.3d 909 (Fla. 4th DCA 2016).  Hence, while a claimant may not be able to prove actual damages as the result of the defamatory (slanderous or libelous) per se action, the plaintiff can still potentially recover punitive damages.  It is this reason why parties oftentimes pursue defamation per se actions.

 “‘[A] publication is libelous per se, or actionable per se, if, when considered alone without innuendo: (1) it charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his trade or profession.’” Blake v. Guistibelli, 182 So.3d 881, 884 (Fla. 4th DCA 2016) quoting Richard v. Gray, 62 So.2d 597, 598 (Fla. 1953).

Libel concerns the written publication of false statements.  Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185, 1191 (11th Cir. 1999)

Slander is a spoken or oral defamation of another which is published to others and which tends to damage that person’s reputation, ability to conduct that person’s business or profession, and which holds that person up to disgrace and humiliation.”  Scott v. Busch, 907 So.2d 662, 666 (Fla. 5th DCA 2005).

There is a lot more to defamation and if you have been the victim of a truly defamatory per se action, consult with counsel so that you understand your rights moving forward.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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