Defamation Per Se –
[1] Elements and Case Citations
A defendant’s oral (slander) or written (libel) publication of a statement to a third party that, when
considered alone, without innuendo:
(1) Tends to subject persons to hatred, distrust, ridicule, contempt, or disgrace;
(2) Tends to injure a person in a trade or profession; or
(3) Attributes to a person either conduct, characteristics, or conditions incompatible with the proper exercise of a lawful business, trade, profession or office.
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Florida State Courts
First District: Axelrod v. Califano, 357 So. 2d 1048, 1050 (Fla. 1st DCA
1978)
Second District: Bass v. Rivera, 826 So.2d 534, 534 (Fla. 2nd DCA
2002)
Third District: Miami Herald Publ’g Co. v. Ane, 423 So. 2d 376, 390 (Fla. 3d
DCA 1982), aff’d, 458 So. 2d 239 (Fla. 1984)
Fourth District: Auld v. Holly, 418 So. 2d 1020, 1027 (Fla. 4th DCA 1982),
modified on other grounds, 450 So. 2d 217 (Fla. 1984)
Fifth District: Hoch v. Rissman, Weisberg, Barrett, Hurt, Donahue, & McLain,
P.A., 742 So. 2d 451, 457 (Fla. 5th DCA 1999)
Florida Federal Courts
Middle District: Leavitt v. Cole, 291 F. Supp. 2d 1338, 1342 (M.D. Fla. 2003)
[2] Defenses to Claim for Defamation Per Se
(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other
standard defenses. See § 60.
(2) Statute of Limitations: § 95.11(4)(g), Fla. Stat. (two years).
(3) Truth is a complete defense to defamation claims. See Rosenberg v.
American Bowling Congress, 589 F. Supp. 547, 551 (M.D. Fla. 1984); see also Art. I, § 4, Fla. Const..
(4) Statements made during a judicial proceeding are absolutely privileged
provided that such statements are related to the proceeding’s subject matter. See Levin, Middlebrooks v. U.S. Fire Ins. Co., 639 So. 2d 606,
607 (Fla. 1994) (absolute privilege extends to parties, witnesses counsel and judges).
(5) Absolute privilege extends to statements made during labor grievance
proceedings provided that such statements are related to the proceeding’s subject matter. See Hope v. Nat. Alliance, Jacksonville 320, 649
So. 2d 897, 900 (Fla. 1st DCA 1995).
(6) Absolute privilege protects statements made by government officials in
connection with their official duties Hauser v. Urchisin, 231 So. 2d 6, 8 (Fla. 1970).
(7) Qualified privilege protects defamatory statements made by private
individuals to the police or the state’s attorney prior to the institution of criminal charges. Fridovich v. Fridovich, 598 So. 2d 65, 69 (Fla.
1992).
(8) “An employer who discloses information about a former employee's job
performance to a prospective employer of the former employee upon request of the prospective employer or of the former employee is presumed to be
acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from civil liability for such disclosure or
its consequences. For purposes of this section, the presumption of good faith is rebutted upon a showing that the information disclosed by the former
employer was knowingly false or deliberately misleading, was rendered with malicious purpose, or violated any civil right of the former employee
protected under chapter 760.” Linafelt v. Beverly Enterprises-Florida, Inc., 745 So. 2d 386, 388 (Fla. 1st DCA 1999); § 768.095, Fla. Stat.
(9) Statements of pure opinion based on known facts do not give rise to
defamation claims. See Miami Child’s World, Inc. v. Sunbeam Television Corp., 669 So. 2d 336, 336 (Fla. 3d DCA 1996).
(10) Minor inconsistencies in news reports are not actionable provided that
report is substantially true and inaccuracies did not result from deliberate falsification or awareness of probable falsity. Newton v. Florida Freedom
Newspapers, Inc., 447 So. 2d 906, 907 (Fla. 1st DCA 1984).
(11) § 770.01, Fla. Stat., requires five (5) days notice to a defendant prior
to filing a libel suit.
