Litigation Privilege Blocks Claims of Defamation and Broken Non–disparagement Agreement

A Florida District Court of Appeals ruled that the trial court should have dismissed petitioner James’ former law partner Leigh and James’ former law firm’s complaint alleging that James defamed Leigh and James breached a non-disparagement agreement with the Firm. James v Leigh, Case No 1D14-799, 145 So. 3d 1006 (1st DCA 2014) (Available Here).   James had made statements in a divorce proceeding alleging that his partner, Leigh, and the law firm engaged in legal misconduct. James made the allegedly defamatory statements in a pleading wherein James had sought to set aside a marital settlement agreement with his former wife.  James indicated that he had signed the settlement agreement on the belief that Leigh would be disciplined for misconduct. If the Florida Bar had found Leigh engaged in misconduct, James could maintain his income and assume control of the law firm. Leigh was never disciplined by the Florida Bar.  

Leigh and the law firm sued James for defamation and breach of non-disparagement agreement based upon allegedly defamatory comments made in James’ divorce proceeding. James filed a motion to dismiss alleging that his statements were protected under the absolute litigation privilege. The trial court had denied James’ motion to dismiss and this appeal followed.

The Appeals Court opined that Florida has a long history establishing that alleged defamatory statements made in the course of judicial proceedings are absolutely privileged and no cause of action for damages will lie, regardless of how false or malicious the statements may be as long as the statements are relevant to the subject of inquiry in the lawsuit. Levin, Middlebrooks, Mabia, Thomas, Mayes and Mitchell, P.A. v. U.S. Fire Ins., 639 So. 2d 606, 608 (Fla. 10994). Florida courts have not imposed a strict relevancy test in determining whether a statement made during the course of a judicial proceeding is entitled to immunity so long as the statement has some relation to the proceeding.  The Appeals Court cited examples wherein a postal employee collaborated in the death of a young black male and was an accessory to murder and made statements in a union grievance proceeding regarding racial tensions in the workplace. Further, statements made by counsel in his motion to withdraw are privileged.

The Appeals Court said that if a trial court denies motion to dismiss on immunity grounds, review of the non-final order is proper because absolute immunity protects the party having to defend the lawsuit

Regarding the non-disparagement agreement, the Florida Supreme Court has held that an individual cannot wave a right designed to protect both the individual and the public. Champs v. DeMayo, 972 So. 2d, 850, 860 (Fla. 2007).  The non-disparagement agreement could not be construed as a waiver of the privilege.

The appellate court reversed the trial court’s decision refusing to dismiss James’ motion to dismiss.

TripAdvisor’s List of Hotels Not Dirty Enough To Warrant A Finding Of Defamation

The Sixth Circuit Court of Appeals held that a company’s list of the “dirtiest” hotels in America based on user reviews is an opinion and therefore protected speech.  Seaton v. TripAdvisor LLC, Case No. 12-6122 (6th Cir. August 28, 2013) (available here).  Kenneth Seaton owns the Grand Resort Hotel and Convention Center (“Grand Resort”) in Tennessee.  In 2011, TripAdvisor LLC ranked Grand Resort number one on its “Dirtiest Hotels” list.  Seaton sued for defamation and false-light invasion of privacy.  TripAdvisor moved to dismiss the class, asserting that the list was within TripAdvisor’s First Amendment rights.  Seaton moved to amend his complaint to add “trade libel/injurious falsehood” and tortious interference with prospective business relationships to his complaint.  The lower court granted TripAdvisor’s motion to dismiss and denied Seaton’s motion to amend.  Seaton appealed, and the Sixth Circuit affirmed.

Grand Resort opened in 1982 and TripAdvisor’s list stated that 87% of Grand Resort’s reviewers did not recommend staying at that hotel.  Seaton argued that TripAdvisor’s method of ranking Grand Resort as the dirtiest hotel was flawed and based upon unverifiable data.  The lower court dismissed Seaton’s case, finding that TripAdvisor’s list was a protected opinion under the First Amendment because it reflected TripAdvisor’s users’ subjective opinions of Grand Resort, and thus these opinions could not be defamatory.

“Placement on the ‘2011 Dirtiest Hotels’ list constitutes protected opinion because the list employs loose, hyperbolic language and its general tenor undermines any assertion by Seaton that the list communicates anything more than the opinions of TripAdvisor’s users.”  Seaton, Slip Op. Pp. 4-5.

“To establish a prima facie case of defamation in Tennessee, the plaintiff must establish that: 1) a party published a statement; 2) with knowledge that the statement is false and defaming to the other; or 3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.” Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999).  The First Amendment protects statements that cannot reasonably be interpreted as stating actual facts about an individual.  Seaton’s claim for defamation fails because TripAdvisor’s list cannot reasonably be interpreted as stating, as a fact, that Grand Resort is the dirtiest hotel in America.  The Sixth Circuit listed two reasons for this: (1) “TripAdvisor’s use of ‘dirtiest’ amounts to rhetorical hyperbole” and (2) “the general tenor of the ‘2011 Dirtiest Hotels’ list undermines any impression that TripAdvisor was seriously maintaining that Grand Resort is, in fact, the dirtiest hotel in America.”  Seaton, Slip Op. Pp. 7-8.

The Sixth Circuit reasoned that any reader would know that TripAdvisor was not stating that Grand Resort was the dirtiest hotel, but that the list was merely based on the subjective views of TripAdvisor’s users.  Thus, the list was not based on scientific findings that Grand Resort was indeed the filthiest hotel in America, but based on users’ experiences when staying at Grand Resort.  Further, there was no recurring theme of what TripAdvisor users considered to be dirty in each hotel, thus allowing each user to apply his or her own definition when writing a review.  The Sixth Circuit held that the list is a protected opinion under the First Amendment and is not defamatory in nature.  As a result, even if TripAdvisor used a flawed method to create the list, Seaton’s claim for defamation still fails because the list is subjective in nature and therefore protected.

Seaton could not argue a false-light invasion of privacy claim because there is no evidence that he was personally named on the list and Grand Resort, as a business, could not make such a claim under Tennessee law.  Further, Seaton’s claim of trade libel/injurious falsehood fails because he cannot prove that any false statements were made about Grand Resort.  Lastly, Seaton’s claim for tortious interference with prospective business relationships is not plausible because this claim rests on his argument that the list is defamatory. The Sixth Circuit therefore affirmed the dismissal of Seaton’s action.

Mouthing Off: Florida Clarifies How Attorneys Can Be Liable for Defamation

Florida attorneys must think before they speak because the Florida Supreme Court has narrowed the protection afforded to attorneys who make allegedly defamatory statements while questioning a potential witness during an ex-parte out of court setting.  The Court clarified that Florida’s absolute privilege regarding defamatory statements made during a judicial proceeding becomes a qualified privilege during ex-parte out of court situations, which requires the plaintiff to show express malice by the person making the statement.  DelMonico v. Traynor, Case No. SC10-1397, Fla. Sup. Ct. February 14, 2013 (Traynor)(available here).

Florida’s absolute privilege protects attorneys, clients, witnesses, and judges from liability for potentially defamatory statements made during a judicial proceeding. The Florida Supreme Court in this case examined whether the privilege extended to statements made by an attorney who was questioning a potential non-party witness regarding a pending lawsuit when the statements were made in an ex-parte out of court setting.

The defendant in this case, Arthur Rodgers Traynor, Jr., is an attorney hired by Donovan Marine, Inc. (Donovan) and Tony Crespo, a Donovan sales representative, to defend against Daniel DelMonico’s defamation lawsuit.  DelMonico is the president of MYD Marine Distributor, Inc. (MYD) and Donovan and Crespo are his competitors.  DelMonico claimed that Crespo defamed him by telling some of DelMonico’s customers that DelMonico supplied prostitutes to the owner of a company doing business with Donovan.  While that case was pending, DelMonico sued Traynor and his law firm for defamation and tortious interference with a business relationship, claiming that Traynor had made false statements about DelMonico to potential witnesses in the Crespo case.  Traynor and his firm moved for summary judgment, arguing that Trayor’s statements were protected by Florida’s absolute privilege.  The trial court granted summary judgment in favor of Traynor and his firm.  On appeal, the Fourth District Court of Appeal affirmed, stating that Traynor “should receive the same absolute immunity in questioning potential witnesses before their appearance at deposition or in the courtroom, as if the questioning were during a formalized judicial proceeding.” DelMonico v. Traynor, 50 So. 3d 4, 7 (Fla. 4th DCA 2010) (DelMonico).

The lower courts relied on the Florida Supreme Court’s decision in a 1994 case, Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So. 2d 606 (Fla. 1994), to hold that any statements made during a potential witness interview are absolutely privileged if the statements have some relation or connection with the pending lawsuit.  DelMonico, 50 So. 3d 4.  The Florida Supreme Court disagreed:

“In this narrow scenario, we conclude that a qualified privilege instead should apply to ex-parte,
out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit.  A qualified privilege requires the plaintiff to establish express malice.  However, where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit, the defendant is not entitled to the benefit of any privilege—either absolute or qualified.”  Traynor, Slip Op. P. 2.

In this case, the Court explained that when the absolute privilege applies, it applies because of specific safeguards that are in place at the time of the statements.  First, these defamatory statements were made either in front of a judicial officer, or in a court document filed with the judicial body.  This means that these statements are recorded, and as a result minimize possible factual disputes.  Second, harm caused by defamatory statements made during a judicial proceeding can be minimized by judicial formal requirements, such as notice and a hearing.  Third, the trial court has the power to expunge or strike irrelevant defamatory material from the pleadings and can punish the speaker with contempt of court.  Fourth, the trial judge has the ability to enforce its orders, and to protect against obstruction of justice.  Traynor, Slip. Op. P. 21.  The Court extended this rationale to depositions properly noticed under the Florida Rules of Civil Procedure, where the opposing counsel is present.  “During depositions, a protection against abuse exists simply because the proceeding is adversarial in nature and the opposing side has an opportunity to immediately object to any untrue statements.”  Traynor, Slip. Op. P. 21.

In contrast, ex-parte out of court statements cannot have the absolute privilege because these safeguards are not in place.  For example, these conversations are typically not recorded in any way, which leaves open the possibility of a dispute over what was actually said.  This is the issue in Traynor.  As a result, the Court concluded “that only a qualified privilege should apply to statements made by attorneys as they undertake informal investigation during pending litigation and engage in ex-parte, out-of-court questioning of nonparty witnesses,” but only if the statements are relevant to the issues in the underlying lawsuit.  Traynor, Slip. Op. Pp. 22-23.  The Court emphasized that whether the defamatory statement is related to or connected with the underlying lawsuit is a question that must be answered by the judge.  Traynor, Slip. Op. P. 23.  If the statements are not related to the underlying lawsuit, there is no protection.  If the judge determines that the statements are related to the lawsuit, then the plaintiff must show that the statements were made with express malice.

To investigate the Crespo lawsuit, Traynor interviewed DelMonico’s ex-spouses and business associates as potential witnesses.  “The crux of DelMonico and MYD’s claims was that Traynor had falsely stated to third-party witnesses during ex-parte interviews that DelMonico was being ‘prosecuted’ for using prostitution to get business.”  Traynor, Slip. Op. P. 26.  As a result, the trial court should not have granted Trayor’s request for summary judgment under Florida’s absolute privilege because, at best, Traynor could assert a qualified privilege if his statements were related to or connected with the underlying Crespo case.  The Court agreed that Trayor’s statements were related to the Crespo case, because the Crespo case regarded statements allegedly made by Crespo that DelMonico hired prostitutes to obtain business and Traynor’s statements were directly related to the accusations against Crespo.  As a result, DelMonico has the burden of showing that Traynor made the statements with express malice, where his “primary motive in making the statements was the intent to injure” DelMonico’s reputation.  Fridovich, 598 So. 2d at 69.  As a result, the Florida Supreme Court quashed the lower courts’ decisions, and remanded the case.

Florida Appeals Court Reverses Injunction for Libel and Defamation as Being a Prior Restraint on Defendant’s Constitutional Right Free Speech

A broken romantic relationship devolved into a pattern of harassment, email hacking, offensive letters, naked photographs sent to third parties from the plaintiff’s email contact list, creation of a website, use of plaintiff’s name for multiple purposes, efforts by defendant to pre-sell a tell-all book, and posting of allegedly defamatory statements about plaintiff. The lower court issued a preliminary injunction prohibiting Vrasic “[f]rom using the name or likeness of Leibel for commercial purposes”; “[f]rom using the words ‘Lorne’ together with ‘Leibel’ for any commercial purpose”; and “[f]rom publishing, selling, licensing, or leasing, or offering to publish, sell, license, or lease” Vrasic’s book “as previously published,” allowing Vrasic to publish a work only “so long as the work does not use the words ‘Lorne’ and/or ‘Leibel,’ alone or in any combination.”  The Appeals Court reversed the lower court’s ruling and mainly dissolved the injunction as violating Vrasic’s right of freedom of speech under the First Amendment.  Vrasic v. Leibel, case no. 4D12-1289 (4th DCA, Jan. 9, 2013)(available here).

Florida courts have long held that temporary injunctive relief is not available to prohibit the making of defamatory or libelous statements because there is an adequate remedy at law for libelous or defamatory statements, namely, an action for damages.  P. 2, citing Animal Rights Found. of Fla., Inc. v. Siegel, 867 So.2d 451, 454 (Fla. 5th DCA 2004); and Murphy v. Daytona Beach Humane Soc’y, Inc., 176 So.2d 922, 924 (Fla. 1st DCA 1965).

“Second, a temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns. See Moore v. City Dry Cleaners & Laundry, 41 So.2d 865, 873 (Fla.1949) (recognizing First Amendment concerns triggered by temporary injunction); Murphy, 176 So.2d at 924 (same); see also Post–Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So.2d 608, 610 (Fla. 5th DCA 2007) (recognizing temporary injunction forbidding speech constitutes a prior restraint) (citing Alexander v. United States, 509 U.S. 544, 550 (1993)). ‘[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.’ Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). And, protection against prior restraints on speech extends to both false statements and to those from which a commercial gain is derived. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976) ( ‘[S]peech does not lose its First Amendment protection because money is spent to project it· Speech likewise is protected even though it is carried in a form that is ‘sold’ for profit.’) (citations omitted); ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915, 924 (6th Cir.2003) (same); Town of Lantana v. Pelczynski, 290 So.2d 566, 569 (Fla. 4th DCA) (‘Freedom from prior restraint upon speech and press extends to false, as well as true statements.’) (citing Patterson v. Colorado, 205 U.S. 454, 462 (1907)), aff’d, 303 So.2d 326 (Fla.1974). ‘[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.’ Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).”  P. 2.

The Appeals court rejected plaintiff’s arguments that defendant engaged in tortious interference or a claim of specialized harm per Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371 (Fla. 4th DCA 1987) and Murtagh v. Hurley, 40 So.3d 62 (Fla. 2d DCA), review denied, 51 So.3d 1155 (Fla.2010).

“The instant case involves neither a claim for tortious interference with a business relationship nor a claim of specialized harm. Indeed, in issuing the temporary injunction, the lower court expressly found that while Leibel had suffered embarrassment and emotional distress—the same harm suffered by all who are the subjects of defamatory statements—there was no evidence that he had been ‘shunned by society’ or had suffered any business or financial losses. We thus decline to extend Zimmerman and Murtagh to uphold the temporary injunction entered in this case.”  P. 3.

Therefore, Leibel’s case against his former lover Vrasic moves forward to trial leaving in place a “no contact” injunction but without the unconstitutional prior restraint of speech, confirming the age old adage “hell hath no fury like a woman scorned,” or, as penned by William Congreve in his poem “The Mourning Bride” (1697): “Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.”

Constitutional Free Speech Invalidates False Claims of Military Honor Act

The U.S. Supreme Court in U.S. v. Alvarez, Case No. 11-210 (June 28, 2012) (available here) ruled that the Stolen Valor Act, 18 U.S.C. sec 204(b) and (c) was an unconstitutional abridgement of Free Speech under the First Amendment. The Act made criminal false claims about receipt of military decorations or medals, such as the prestigious Congressional Medal of Honor.

Lying was Defendant Alvarez’s habit. He “lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie [was alleged to] violate[] a federal criminal statute, the Stolen Valor Act of 2005. 18 U. S. C. §704.” Slip opn. p. 1 (herein “P. 1”).

As a general matter, the First Amendment “means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content… Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few ‘historic and traditional categories [of expression] long familiar to the bar,’ Id., at ___ (slip op., at 5) (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (KENNEDY, J., concurring in judgment)). Among these categories are advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam); obscenity, see, e.g., Miller v. California, 413 U. S. 15 (1973); defamation, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (providing substantial protection for speech about public figures); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (imposing some limits on liability for defaming a private figure); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949); so-called ‘fighting words,’ see Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); child pornography, see New York v. Ferber, 458 U. S. 747 (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976); true threats, see Watts v. United States, 394 U. S. 705 (1969) (per curiam); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931), although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam). These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules.” P. 5.

Falsity alone does not normally suffice to bring the speech outside the First Amendment. In “some instances of defamation and fraud, moreover, the Court has been careful to instruct that … [t]he statement must be a knowing or reckless falsehood.” P. 7. See Sullivan, supra, at 280 (prohibiting recovery of damages for a defamatory falsehood made about a public official unless the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not”); see also Garrison, supra, at 73 (“[E]ven when the utterance is false, the great principles of the Constitution which secure freedom of expression . . . preclude attaching adverse consequences to any except the knowing or reckless falsehood”); Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 620 (2003) (“False statement alone does not subject a fundraiser to fraud liability”). P. 7.

“Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.” P. 11. 

“The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth… The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.” PP. 15-16.

In summary, the Court ruled that such statutes, like the Stolen Valor Act must include an element of fraud or misrepresentation, not just falsity, to pass muster under the First Amendment. P. 7 (fraud), 11 (material gain), 13 (casual link between restriction and injury to be presented).

Website Service Provider’s Absolute Immunity in Florida

Florida’s Third District Court of Appeals (3rd DCA) ruled that the federal Communications Decency Act, 47 U.S.C. § 230 (“CDA”), provides absolute immunity to Rip Off Report, a computer service provider who maintains an interactive website permitting others to post comments or blogs. Giordano v. Romeo, Case no. 3D11-707 (3rd DCA, Dec. 28, 2011) (available here). Giordano sued Romeo and the website service provider Xcentric Ventures, LLC who maintains a blog posting service website at Xcentric maintains the infamous RipOff Report website permitting its users to post critical comments about businesses.

Romeo, a disgruntled recipient of G&S’ services, went online and posted false and defamatory claims about Giordano and G&S, identifying Giordano as a convicted felon and claiming, among other things, that the employees of G&S illegally disbursed medications and that the facility itself was dangerous. Giordano sued Romero and Xcentric for defamation and won at trial. The trial court found that a least a portion of the blog postings were defamatory per se. Co-defendant Romero “begged” co-defendant Xcentric to remove the offensive material but, even after trial and entry of an injunction, Xcentric refused to remove the defamatory material.

Xcentric moved to dismiss the complaint against it on the basis of its immunity from suit under the CDA which specifies that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The CDA further provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). The trial court agreed with Xcentric.

“The Florida Supreme Court has held that the CDA provides absolute immunity to interactive computer services like Xcentric. In Doe v. America Online, Inc., 783 So. 2d 1010 (Fla. 2001), an internet service provider that had allowed third parties to publish allegedly illegal postings on the internet was deemed immune from suit. Relying on the Fourth Circuit decision in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the Florida Supreme Court held that ‘section 230 expressly bars ‘any actions’ and we are compelled to give the language of this preemptive law its plain meaning. Doe 783 So. 2d at 1018. Further, the Court adopted the reasoning of Zeran unambiguously, stating that it was accepting Zeran’s account of the scope and purpose of the CDA as a basis for our reading of section 230. Doe, 783 So. 2d at 1015. That account included the statement that ‘Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.’ Zeran, 129 F.3d at 330. Consequently, under Florida law, section 230 of the CDA creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.’ Id..” Giordano, Slip opn. 3-4.

 The 3rd DCA called Xcentric’s business practices appalling because it “creat[ed] a forum for defamation,” with no checks or balances to assure the posting of reliable information and no protocol to determine “whether its users are availing themselves of its services for the purpose of tortious or illegal conduct.” Xcentric’s policy is “never to remove a post.” Giordano at p. 4.

Notwithstanding this sharp language by the 3rd DCA, it found “Xcentric enjoys complete immunity from any action brought against it as a result of the posting of third party users of its website.” Giordano, pg. 5.

Beware the Jabberwocky

Florida’s Long Arm Jurisdiction Drags Washington State Defamation Defendant into Florida Court When Allegations of Criminal Acts are Accessed by Floridians on the Defendant’s Website:

The Florida Supreme Court, at the request of the regional Federal Circuit Court of Appeals (the 11th Circuit), ruled that Tabatha Marshall’s critical statements on her consumer oriented website,, when accessed by several Florida residents, were sufficient to drag her into Orlando’s federal district court in this defamation suit by Internet Solutions Corporation (ISC). Internet Solutions Corp. v. Marshall, Case No. SC09-272, June 17, 2010 (Fla. 2010).

Marshall owns and operates a website wherein she posts consumer related information and commentary about retailers, vendors and Internet sites providing services to the public.  The Orlando-based employment and recruiting company, ISC, owned and operated a website VeriResume.  Marshall posted comments on her website that ISC was engaged in identify theft, collecting personal information and selling it to third parties, that ISC’s VeriResume website service was a scam and ISC used phishing operations to “steal” and gather personal information about users and sell that data to third parties.  In sum, Marshall posted comments that ISC and Veriresume were engaged in an on-going criminal activity, namely identity theft.

The Florida Supreme Court was NOT called upon to decide whether the allegations of criminal wrongdoing were true or that Marshall’s comments amounted to defamation, but rather was asked by the 11th Circuit Court of Appeals to decide whether Florida’s long arm jurisdiction statute established that Marshall, a resident of the State of Washington, could be hailed or brought into court in Florida to defend the alleged libelous statements.  The answer was YES, because Florida residents did, in fact, access Marshall’s website and comment on the alleged defamatory statements.  ISC’s complaint listed email responses from Florida residents to Marshall’s identity theft commentary about ISC’s VeriResume website.

For Internet bloggers, commentators and authors (re publishers), Lewis Carroll’s poem about the slaying of the Jabberwocky dragon casts a warning.

“Beware the Jabberwock, my son!
The jaws that bite, the claws that catch!
Beware the Jubjub bird, and shun
The frumious Bandersnatch!”

In general, the Florida Supreme Court found that the State’s long arm jurisdictional statute, Fla. Sta. 48.193(1)(b), establishes that anyone who commits a tortious act in Florida can be sued in Florida and, in the context of defamation, it is the publication of the libelous, slanderous or defamatory statements in Florida that establishes jurisdiction over non-residents.

The Court DID NOT address whether jurisdiction over non-resident Marshall was proper under the due process clause of the U.S. Constitution and specifically noted that personal jurisdiction over a non-resident is a two-prong test.  First, a determination is made whether jurisdiction is proper under Florida’s long arm statute, then a determination is made whether defendant has minimum contacts with the forum state (the Florida court) such that “the district court‘s exercising of jurisdiction over that defendant would [not] offend traditional notions of fair play and substantial justice.”  ISC v. Marshall, pg. 8, citing Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1162 (11th Cir. 2005), see also Venetian Salami Co. v. New Oji Paper Co., 554 So. 2d 499 (Fla. 1989).  In fact, the federal constitutional issue of whether Marshall can be hailed into the Orlando District Court remains open since the Florida Court expressly did not rule on this topic.

“The second step [to determine jurisdiction over a non-resident] is a more restrictive one, precluding suit in any situation where the exercise of jurisdiction over the nonresident defendant would violate due process. This question is not before us in the certified question and we do not deem it necessary to broaden the question in order to address the due process inquiry.” ISC, at pg. 31.

The Florida Court noted that the elements of a defamation claim include (1) publication; (2) of a falsity; (3) wherein the actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) the statement must be defamatory.  Id. at pg. 27, ftnt 8, see also, Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008).

The Court noted that a cause of action for defamation requires publication of the defamatory statement in the State and that the statement must be causally related to the defamation action, fraud or other negligent publication. Multiple party telephone conference calls into the State wherein the defendant stated that plaintiff “had AIDS,” emails to members of a veterans’ association, some of whom were in-state and defamatory statements made by an out-of-state moderator of an Internet chat room to an in-state plaintiff all support the causation condition and the publication in Florida condition.  See, Acquadro v. Bergeron, 851 So. 2d 665, 670 (Fla. 2003); Price v. Kronenberger, 24 So. 3d 775, 776 (Fla. 5th DCA 2009); and Becker v. Hooshmand, 841 So. 2d 561 (Fla. 4th DCA 2003).  Fraudulent and negligent misrepresentations made to Florida plaintiffs also support the publication and causation condition.  Wendt v. Horowitz, 822 So. 2d 1252, 1254 (Fla. 2002); Hou v. United Airlines Corp., No. 806CV-1502-T-27TGW, 2006 WL 2884963 (M.D. Fla. Oct. 10, 2006); and OSI Indus., Inc. v. Carter, 834 So. 2d 361, 364 (Fla. 5th DCA 2003).

In conclusion, as for tortious acts committed in Florida, including defamatory statements published to Florida residents, the reach of Florida tort law is long.  Although the acts may be tortious, the U.S. Constitution further limits personal jurisdiction because the “due process inquiry requires … [the court] to determine whether ―he defendant ha[s] minimum contacts with the forum state, and if the district court‘s exercising of jurisdiction over that defendant would offend traditional notions of fair play and substantial justice.”  ISC v. Marshall, pg. 8.