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 [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.