The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SB 1220
INTRODUCER: Senators Brodeur and Perry
SUBJECT: Defamation and Related Actions
DATE: April 4, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Cibula JU Favorable
2. Collazo Twogood RC Pre-meeting
I. Summary:
SB 1220 creates and amends several statutes relating to defamation causes of action. The most
significant changes purport to reduce a plaintiff’s burden of proof necessary to prevail in a
defamation action. More specifically, the bill creates statutes providing that:
Defamation actions include actions for libel, slander, and other recognized causes of action
like defamation by implication.
The publication of an altered or unaltered photograph, video, or audio recording may form
the basis of a defamation action.
A person is not a public figure for purposes of a defamation action if the person acquires
fame or notoriety from engaging in certain specified activities.
A defamatory allegation is made with actual malice for purposes of a defamation action if
certain specified criteria apply.
If the actual malice standard otherwise applies to a defamation action in which the defendant
does not identify the source for a defamatory statement, the plaintiff need only prove that the
defendant acted negligently in making the defamatory statement.
In a defamation action based on an alleged defamatory statement that does not relate to the
reasons for the plaintiff's status as a public figure, the plaintiff need only prove that the
defendant acted negligently in making or repeating the statement.
The bill amends the statute governing venue for defamation actions, to provide that venue for
such actions is proper in any county identified in the general venue statute, including any county
where the defamatory material is accessed by a third party.
The bill also amends:
The statute codifying the journalist’s privilege, to provide that it does not apply to
defamation or related actions against a professional journalist.
Two anti-strategic lawsuit against public participation (SLAPP) statutes, to provide that a
defendant in an action for defamation or similar action who files a motion to dismiss or
BILL: SB 1220 Page 2
motion for summary judgment under those statutes is entitled to attorney fees and costs only
if the allegedly defamatory statement was not negligently made.
The bill takes effect July 1, 2023.
II. Present Situation:
Defamation
Generally
Defamation is the unprivileged publication of false statements that naturally and proximately
result in an injury to another.1 It has also been described as a statement that tends to harm the
reputation of another by lowering him or her in the estimation of the community or, more
broadly stated, one that exposes a plaintiff to hatred, ridicule, or contempt or injures his business,
reputation, or occupation.2
The Florida Constitution provides that every person may speak, write, and publish sentiments on
all subjects, but will be responsible for the abuse of that right.3 The law of defamation embodies
the public policy that individuals should be free to enjoy their reputations unimpaired by false
and defamatory attacks. An action for defamation is based upon a violation of this right.4
Different states vary in their anti-defamation statutes; as such, courts in different states will
interpret defamation laws differently, and defamation statutes will vary somewhat from state to
state.5 But generally, defamation may take one of three forms:
Spoken words, commonly known as “slander.”6
A written statement, commonly known as “libel.”7
An implication, commonly known as “false light” invasion of privacy.8
Before 2008, Florida courts recognized separate causes of action for slander and libel premised
upon spoken or written defamatory statements, but did not recognize a separate cause of action
for defamation itself.9 However, in 2008, the Florida Supreme Court recognized a standalone tort
of defamation,10 and in doing so effectively subsumed all claims for slander and libel into that
1
Hoch v. Loren, 273 So. 3d 56, 57 (Fla. 4th DCA 2019) (internal citation omitted).
2
Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1108-09 (Fla. 2008) (internal citation omitted).
3
FLA. CONST. art. I, s. 4.
4
19 FLA. JUR. 2D s. 1 Defamation and Privacy.
5
Cornell Law School Legal Information Institute, Defamation, https://www.law.cornell.edu/wex/defamation (last visited
Mar. 15, 2023).
6
See Spears v. Albertson’s, Inc., 848 So. 2d 1176, 1179 (Fla. 1st DCA 2003) (providing that “[s]lander may be defined as the
speaking of base and defamatory words”).
7
See Dunn v. Air Line Pilots Association, 193 F.3d 1185, 1191 (11th Cir. 1999) (noting that under Florida law, libel is defined
as the unprivileged written publication of false statements).
8
See RESTATEMENT (SECOND) OF TORTS s. 652E.
9
See Delacruz v. Peninsula State Bank, 221 So. 2d 772, 775 (Fla. 2d DCA 1969) (explaining that there is no such legal cause
of action as ‘defamation’ and “[l]ibel and slander may be Founded [sic] on defamation, but the right of action itself is libel or
slander, depending upon whether it is written or oral”).
10
See Jews for Jesus, Inc., 997 So. 2d at 1105-08 (comparing the false light cause of action to the defamation by implication
cause of action, and recognizing the existence of only the latter in Florida).
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tort. Therefore, defamation now encompasses both libel and slander.11 False light is not
recognized as a separate cause of action in Florida, but like slander and libel, it is nearly identical
to a form of defamation, known as “defamation by implication.”12
Although libel is generally perpetrated by written communication, it also includes defamation
through the publication of pictures or photographs.13 Alteration of a photograph may support a
defamation action.14
Cause of Action
In Florida, the five required elements of a claim for defamation are:
Publication.
Falsity.
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.
Actual damages.
A defamatory statement.15
“Publication” is a required element because a defamatory statement does not become actionable
until it is published or communicated to a third person.16 Publication requires proof that the
statement is exposed to the public so it may be read or heard by a third person, but not
necessarily that it has in fact been read or heard by a third person.17
The element of “falsity” requires that the defamation be “of and concerning” the plaintiff,18 and
that the allegation or representation about the plaintiff be false.19 The falsity may be premised
upon untruthfulness, such as in the case of slander or libel, or from truthful statements that imply
falsely, such as in the case of defamation by implication.20
An 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.21 With respect to
this element, case law has developed which purports to balance the interests of the First
11
Norkin v. The Florida Bar, 311 F. Supp. 3d 1299, 1303-04 (S.D. Fla. 2018) (internal citations omitted); Klayman v.
Judicial Watch, Inc., 22 F. Supp. 3d 1240, 1247 fn. 2 (S.D. Fla. 2014).
12
See Jews for Jesus, Inc., 997 So. 2d at 1108 (comparing the false light cause of action to the defamation by implication
cause of action, and recognizing the existence of only the latter in Florida); but see RESTATEMENT (SECOND) OF TORTS s.
652E (recognizing a separate tort of false light).
13
19 FLA. JUR. 2D Defamation and Privacy s. 15 (citing 50 AM. JUR. 2D Libel and Slander s. 153).
14
50 AM. JUR. 2D Libel and Slander s. 153 (internal citations omitted).
15
Jews for Jesus, Inc., 997 So. 2d at 1106.
16
American Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007).
17
Axiom Worldwide, Inc. v. Becerra, 2009 WL 1347398, *7 (M.D. Fla. 2009) (citing Rives v. Atlanta Newspapers, Inc., 220
Ga. 485, 139 S.E.2d 395, 398 (1964) (noting, in applying single publication rule to newspaper, that “whether or not it is read
is immaterial once it is shown that it was exposed to public view”)).
18
Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 805 (Fla. 1st DCA 1997).
19
See generally Milkovich v. Lorain Journal Co., 497 U.S. 1, 23 (1990) (Brennan, J., dissenting) (noting that “only
defamatory statements that are capable of being proved false are subject to liability under state libel law”).
20
Jews for Jesus, Inc., 997 So. 2d at 1106-08.
21
Id. at 1106.
BILL: SB 1220 Page 4
Amendment while also protecting people from being unjustly defamed.22 Accordingly, courts
apply an actual malice standard, which is addressed separately and in more detail below, to
public figures, and a simple negligence standard to private individuals.23 A private individual
may recover actual damages from a media defendant that publishes false and defamatory
statements and that fails to use reasonable care to determine their falsity.24
With respect to the element of actual damages, the recovery of actual damages depends upon
whether the defamation was “per se” or “per quod.” Defamation per se generally relieves
plaintiffs of having to prove damages, because such statements are so inherently damaging that
damages are typically presumed.25 On the other hand, defamation per quod generally requires
plaintiffs to provide supporting and extrinsic evidence in order to prove that the statement or
publication was actually defamatory.26
Finally, the statements must actually be defamatory. To make this determination, courts consider
allegedly defamatory statements in their totality. For example, they consider all the words,
pictures, and illustrations as used and presented together, not just a particular phrase or sentence
in isolation.27 An allegedly defamatory statement should be considered in its natural sense
without a forced or strained construction.28 Courts also make threshold determinations regarding
whether a claim should even be considered by a jury,29 and whether a privilege applies.30
Defenses
In addition to general procedural and other defenses that may be available (e.g. a failure to allege
and prove any of the elements of defamation), the following specific defenses are available in
response to a claim of libel, slander, or defamation by implication:
Statutory protections:
o For radio and television broadcasters.31
o For good faith reports of potential child abuse, abandonment, or neglect.32
Privilege:
o Absolute immunity, for any act occurring during the course of a legislative, judicial, or
quasi-judicial proceeding, so long as the act has some relation to the proceeding.33
22
Gleisy Sopena, Attorney-Fee Shifting is the Solution to Slapping Meritless Claims Out of Federal Courts, 16 FIU L. REV.
833, 842 (Spring 2022).
23
Jews for Jesus, Inc., 997 So. 2d at 1111.
24
Thomas, 699 So. 2d at 804.
25
Wolfson v. Kirk, 273 So. 2d 774, 776 (Fla. 4th DCA 1973); Bass v. Rivera, 826 So. 2d 534, 535 (Fla. 2d DCA 2002);
Delacruz, 221 So. 2d at 775.
26
Boyles v. Mid-Florida Television Corp., 431 So. 2d 627, 633 (Fla. 5th DCA 1983) (quoting Piplack v. Mueller, 97 Fla. 440,
121 So. 459 (Fla. 1929)).
27
Byrd v. Hustler Magazine, Inc., 433 So. 2d 593, 595 (Fla. 4th DCA 1983).
28
Id.
29
Id.; Wolfson, 273 So. 2d at 778.
30
See Jews for Jesus, Inc., 997 So. 2d at 1111-12 (providing a list of cases that applied various privileges to defamatory
statements); see also s. 770.04, F.S. (regarding liability of radio or television broadcasters); see also Wright v. Yurko, 446 So.
2d 1162, 1164 (Fla. 5th DCA 1984) (holding privilege extends to communications made within lawsuits).
31
See generally s. 770.04, F.S.
32
See generally s. 39.203, F.S.
33
See Kidwell v. General Motors Corp., 975 So. 2d 503, 505 (Fla. 2d DCA 2007) (regarding judicial and quasi-judicial
immunity); see also Tucker v. Resha, 634 So. 2d 756, 758 (Fla. 1st DCA 1994), apprv’d, 670 So. 2d 56 (Fla. 1996) (noting,
BILL: SB 1220 Page 5
o Absolute immunity, for state executive officers34 and public officials,35 as long as their
statements are made in connection with their duties and responsibilities.
o Qualified immunity, when made in good faith and certain other conditions are met.36
Immunity as an expression of pure opinion, which occurs when one makes a comment or
opinion based on facts in an article or are otherwise known or available to the reader or
listener as a member of the public.37
Actions for libel and slander must be brought within 2 years after the cause of action accrues.38
Actual Malice Standard
Private individuals only need to allege and prove simple negligence to recover in defamation
actions, but public figures who sue for defamation actions are subject to a different standard
known as the “actual malice” standard.39
As required by the landmark federal case New York Times v. Sullivan40 and its progeny,41 people
who qualify as public figures must show actual malice by a publisher in order to maintain an
action in defamation. The existence of actual malice must be proved by clear and convincing
evidence.42 Under the actual malice test, a public figure claimant must show that the
disseminator of the information “either knew the alleged defamatory statements were false, or
published them with reckless disregard despite awareness of their probable falsity.”43
Because direct evidence of actual malice is rare, courts have permitted actual malice to be proved
through inference and circumstantial evidence alone.44 For example, actual malice may be found
where a publisher fabricates an account, makes inherently improbable allegations, relies on a
source where there is an obvious reason to doubt its veracity, or deliberately ignores evidence
that calls into question published statements.45 Although motive alone cannot suffice to prove
with emphasis added, that “[t]he public interest requires that statements made by officials of all branches of government in
connection with their official duties be absolutely privileged”) (internal citations omitted).
34
Tucker, 634 So. 2d at 758.
35
Hope v. National Alliance of Postal and Federal Employees, Jacksonville Local No. 320, 649 So. 2d 897, 901 fn. 5 (Fla. 1st
DCA 1995).
36
See Lundquist v. Alewine, 397 So. 2d 1148, 1149 (Fla. 5th DCA 1981) (providing that the elements essential to the finding
of a conditionally privileged publication are good faith; an interest to be upheld; a statement limited in its scope to this
purpose; a proper occasion; and publication in a proper manner) (internal citations omitted).
37
Sepmeier v. Tallahassee Democrat, Inc., 461 So. 2d 193, 195 (Fla. 1st DCA 1984) (internal citation omitted); Smith v.
Taylor County Pub. Co., Inc., 443 So. 2d 1042, 1046-47 (Fla. 1st DCA 1983).
38
See s. 95.11(4)(g), F.S. (providing a 2-year statute of limitations for libel or slander); see also s. 95.031(1), F.S. (providing
that unless otherwise specified, the statute of limitations runs from the time the cause of action accrues).
39
Jews for Jesus, Inc., 997 So. 2d at 1105-06; Mile Marker, Inc. v. Petersen Publishing, L.L.C., 811 So. 2d 841, 845 (Fla. 4th
DCA 2002) (citing New York Times).
40
376 U.S. 254 (1964).
41
In New York Times Co. v. Sullivan, 376 U.S. 254, 279-84 (1964), the U.S. Supreme Court applied the actual malice
standard to public officials. Three years after New York Times, the Court applied the same standard to public figures in Curtis
Pub. Co. v. Butts, 388 U.S. 130, 164-65 (1967) (Warren, C.J., concurring in plurality opinion).
42
Lampkin-Asam v. Miami Daily News, Inc., 408 So. 2d 666, 668-69 (Fla. 3d DCA 1981).
43
Mile Marker, Inc., 811 So. 2d at 845 (citing New York Times).
44
Sindi v. El-Moslimany, 896 F.3d 1, 16 (1st Cir. 2018).
45
Id.; see also St. Amant v. Thompson, 390 U.S. 727, 732 (1968) (remarking that publications are likely not made in good
faith where “a story is fabricated by the defendant, is the product of his imaginat