Defamation, Libel & Slander

Under Jews for Jesus v. Rapp, 997 So. 2d 1098 (Fla. 2008), a defamation claim in Florida requires five elements: (1) publication of a statement to a third party; (2) falsity; (3) fault — actual knowledge of falsity or reckless disregard for truth for matters concerning public officials or public figures, or at least negligence for matters concerning private individuals; (4) actual damages; and (5) the statement must be defamatory in character. Defamation may take the form of written statements (libel), spoken words (slander), or implication.

Libel refers to defamatory written statements. Slander refers to defamatory spoken words. Both are subject to the same five-element test under Florida law.

Publication means the defamatory statement was communicated to at least one person other than the plaintiff. The statement must be exposed to the public in a way that makes reading or hearing it possible — it does not require proof that anyone actually read or heard it. Florida does not recognize “compelled self-publication”: a defendant is not liable solely because a plaintiff repeated an allegedly defamatory statement to others.

Defamation per se refers to statements that necessarily cause injury by their very nature — for example, a statement imputing a criminal offense amounting to a felony. When a statement is per se defamatory, both malice and damages are presumed; the plaintiff need not prove specific harm. Defamation per quod, by contrast, requires the plaintiff to plead and prove facts extrinsic to the statement itself that give it its harmful meaning, and to establish actual damages.

The distinction controls the fault standard the plaintiff must satisfy. Public officials and public figures must prove “actual malice” — that the defendant knew the statement was false or acted with reckless disregard for its truth — by clear and convincing evidence. Private individuals need only prove negligence. Florida courts apply a two-step test for “limited public figures”: first, whether a genuine public controversy existed; and second, whether the plaintiff played a sufficiently central role in it. Whether a plaintiff qualifies as a public figure is a question of law, decided by the court.

Actual malice — the standard established by New York Times Co. v. Sullivan — means the defendant either knew the statement was false or published it with reckless disregard for its probable falsity. It applies to defamation claims by public officials and public figures, and also governs whether any plaintiff can recover presumed or punitive damages. Actual malice must be proved by clear and convincing evidence.

Pure opinion is constitutionally protected under the First Amendment and is not actionable. A statement qualifies as pure opinion when it is based on facts set forth in the publication or otherwise available to the audience. A “mixed” opinion — one that implies undisclosed false facts — is not protected and may be actionable. The determination is a legal one: calling something an opinion does not immunize it if it implies false underlying facts.

Defamation per se allows damages to be presumed without proof of specific harm. For other claims, recoverable actual damages include impairment of reputation and standing in the community, personal humiliation, mental anguish and suffering, and out-of-pocket losses. Presumed and punitive damages require proof of actual malice regardless of the plaintiff’s public or private status — a constitutional requirement established by Gertz v. Robert Welch, Inc.

Florida’s statute of limitations for all defamation claims — libel, slander, and defamation by implication — is two years, under Fla. Stat. § 95.11(4)(g).