Claim for Defamation Differ vs Claim for Defamation Per Se

Florida Law: Defamation vs. Defamation Per Se

In Florida, a plaintiff must prove the following elements to succeed on a claim for defamation:

• a false statement concerning another person or company;
• an unprivileged publication of the statement to a third party;
• negligence or intentional conduct on the part of the author of the statement; and
• actual damages.

The common difficulty, however, is proving actual damages in support of a defamation claim. That is where defamation per se is a major factor.

Defamation per se is a type of cause of action in which the content of the alleged false statement is so inherently damaging, damages are presumed to exist from the mere fact the statement was made.

Examples of per se defamation include the following:

• When the statement charges that a person has committed an infamous crime;
• When the statement charges a person with having an infectious disease (or mental illness);
• When the statement tends to subject one to hatred, distrust, ridicule, contempt or disgrace; or
• The statement tends to injure one in his trade or profession.

So what is the practical benefit to a plaintiff of alleging a claim for defamation per se instead of an ordinary claim for defamation? First, Florida has singled out defamation per se for special rules in civil tort litigation and per se defamatory statements are presumed harmful as a matter of law. Second, the law presumes malice when per se defamation occurs because such statements are so inherently damaging, making it unnecessary to prove express malice. Indeed, general damages are conclusively presumed to exist and no proof of special damages is required. Third, punitive damages may be the primary form of damages that are available for per se defamation, even when there is no provable evidence of actual damages.

Florida defamation law considers protecting a person’s reputation paramount and provides substantial remedies, in particular, for per se defamation. The following quote sums up Florida’s strong policy in favor of protecting one’s reputation from defamation:

. . . Florida’s unusually high protection of personal reputation derives from the common consent of humankind and has ancient roots. It is highly valued by civilized people. Our state constitution and common law powerfully support it. This is a value as old as the Pentateuch and the Book of Exodus, and its command as clear as the Decalogue: “Thou shall not bear false witness against thy neighbor.” The personal interest in one’s own good name and reputation surpasses economics, business practices or money. It is a fundamental part of personhood, of individual standing and one’s sense of worth . . . For slander per se, reprehensibility is at its highest.

Lawnwood Medical Ctr. v. Sadow, 43 So.3d 710 (Fla. 4th DCA 2010).

Notwithstanding the strong policy that favors protecting a person’s reputation from defamation, defamation cases are often riddled with difficult proof issues and can be expensive to litigate, particularly where actual damages may not be provable. Therefore, it is important that, if you have been defamed, or are defending a claim for defamation, you should speak to an attorney experienced in handling defamation cases.

Contact Rabin Kammerer Johnson at 877-915-4040 if you want to bring a defamation case or are defending against a claim for defamation.