HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 757 Defamation, False Light, and Unauthorized Publication of Name or
Likenesses
SPONSOR(S): Judiciary Committee, Civil Justice Subcommittee, Andrade
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 12 Y, 4 N, As CS Mawn Jones
2) Regulatory Reform & Economic Development 8 Y, 5 N Larkin Anstead
Subcommittee
3) Judiciary Committee 14 Y, 7 N, As CS Mawn Kramer
SUMMARY ANALYSIS
The First Amendment to the United States Constitution provides that “Congress shall make no law … abridging
the freedom of speech, or of the press....” Courts apply the First Amendment to the states through the
Fourteenth Amendment, thus prohibiting the states from enacting laws which abridge the freedom of speech or
of the press. Courts also apply the First Amendment to civil lawsuits between private parties where the courts
must, in deciding the claims, apply a state rule of law touching on the freedoms guaranteed by the First
Amendment, including claims for:
Defamation, which is a tort arising out of a statement that injures a third party’s reputation.
Invasion of privacy, which is a tort that generally falls into one the following three categories:
o Unauthorized publication of another’s name or likeness;
o Unreasonable public disclosure of a private fact; or
o Publicity that unreasonably places another in a false light before the public.
In these instances, the courts recognize that the First Amendment guarantees are not absolute. Instead, the
courts must balance the rights of the defendant to speak or otherwise publicize information with the rights of
the plaintiff to protect his or her reputation or privacy. This is especially important where the plaintiff is a public
figure; in such instance, a court, recognizing the necessity of the free flow of information of public importance,
generally requires a public figure suing for defamation to prove actual malice on the part of the defendant
before he or she can prevail, instead of mere negligence, as is the usual standard. Further, Florida law
establishes an evidentiary journalist’s privilege, which privilege prevents a journalist from being compelled to
testify about or provide information obtained while gathering news in most situations, including the identity of
any sources.
CS/CS/HB 757:
Defines “defamation or privacy tort” and modifies the venue requirements for such an action.
Extends the liability shield under the fair reporting privilege to newspaper entities.
Limits a media entity’s liability shield under the fair reporting privilege and ability to avoid punitive
damages where the entity fails to address an article’s or broadcast’s Internet presence.
Creates a rebuttable presumption that a publisher published a statement about a public figure with
actual malice where the public figure proves the statement is false and the publisher relied on an
anonymous source for the statement.
Authorizes a “veracity hearing” in a defamation or privacy tort action in specified circumstances.
Resuscitates the tort of false light in the limited context of the intentional use of artificial intelligence to
create or edit any form of media.
The bill does not appear to have a fiscal impact on state or local governments. The bill provides an effective
date of July 1, 2024.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 2/21/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
First Amendment Guarantees: Freedom of Speech and of the Press
The First Amendment to the United States Constitution provides that “Congress shall make no law …
abridging the freedom of speech, or of the press...” 1 In 1940, the United States Supreme Court held
that the Fourteenth Amendment’s concept of liberty embraced the liberties guaranteed by the First
Amendment, which provides, in pertinent part, that “[n]o State shall make or enforce any law which
shall abridge the privileges or immunities or citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction equal protection of the laws.” 2
Thus, courts apply the First Amendment to the states through the Fourteenth Amendment, therefore
prohibiting the states from enacting laws which abridge the freedom of speech or of the press. Courts
also apply the First Amendment to civil lawsuits between private parties where the courts must, in
deciding the claims, apply a state rule of law, whether statutory or common law, 3 touching on the
freedoms guaranteed by the First Amendment.4 In applying the First Amendment to such lawsuits, the
United States Supreme Court recognizes that the constitutional protections for the freedom of speech
and of the press were guaranteed to the people to assure the free exchange of ideas for the bringing
about of political and social changes desired by the people. 5 The Court has also acknowledged that
maintaining the opportunity for free political discussion so that governments may be responsive to the
will of the people and changes may be obtained by lawful means is a fundamental principle of the
constitutional system; indeed, noted the Court, the freedom of speech and of the press “is the
indispensable condition of nearly every other form of freedom.” 6
General Tort Law
The main purpose of Florida’s civil justice system is to properly and fairly redress the civil wrongs
committed throughout the state. A functioning civil justice system, when it operates justly:
Provides a fair and equitable forum to resolve disputes;
Discourages persons from resorting to self-help methods to redress wrongs;
Appropriately compensates legitimately harmed persons;
Shifts losses to responsible parties;
Provides incentives to prevent future harm; and
Deters undesirable behavior.7
A goal of the civil justice system is to redress tortious conduct, or “torts” – that is, wrongs for which the
law provides a remedy. Torts are generally divided into three categories, as follows:
An intentional tort, examples of which include assault, battery, or false imprisonment. 8
1
The First Amendment was ratified on December 15, 1791, as part of the Bill of Rights; that is, the first ten Amendments to th e United
States Constitution. Library of Congress, The Bill of Rights, https://www.loc.gov/item/today-in-history/december-
15/#:~:text=On%20December%2015%2C%201791%2C%20the,of%20peaceful%20assembly%20and%20petition (last visited Feb. 21,
2024).
2 Cantwell v. Connecticut, 310 U.S. 296 (1940).
3 Common law is law arising from judicial decisions. Legal Information Institute, Common Law,
https://www.law.cornell.edu/wex/common_law (last visited Feb. 21, 2024).
4 See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); see also, e.g., American Fed’n of Lab or v. Swing, 312 U.S. 321
(1941).
5 See, e.g., Sullivan, 376 U.S. at 269.
6 Curtis Pub . Co. v. Butts, 388 U.S. 130 (1967)
7 Cf. Am. Jur. 2d Torts s. 2.
8 Legal Information Institute, Intentional Tort, https://www.law.cornell.edu/wex/intentional_tort (last visited Feb. 21, 2024).
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Recklessness, which is behavior so careless that it is considered an extreme departure from the
care a reasonable person would exercise in similar circumstances. 9
Negligence, which is the failure to behave with the level of care that an ordinary prudent person
would have exercised under the same circumstances.10 To prevail in a negligence lawsuit, the
plaintiff must show that the:
o Defendant had a legal duty of care requiring the defendant to conform to a certain
standard of conduct for the protection of others, including the plaintiff, against
unreasonable risks;
o Defendant breached his or her duty of care by failing to conform to the required
standard;
o Defendant’s breach caused the plaintiff to suffer an injury; and
o Plaintiff suffered actual damage or loss resulting from such injury. 11
Some torts, such as defamation and invasion of privacy, touch on conduct which amounts to speech, or
which is carried out by the press; in these instances, the courts recognize that the First Amendment
guarantees are not absolute.12 Instead, the courts must balance the rights of the defendant to speak or
otherwise publicize information with the rights of the plaintiff to protect his or her reputation or privacy.
Defamation
Defamation is a tort arising out of a statement that injures a third party’s reputation – in other words, it
is a statement that tends to harm the reputation of another by lowering him or her in the community’s
estimation.13 More broadly stated, it is a statement that exposes another to hatred, ridicule, or contempt
or injures another’s business, reputation, or occupation. 14 Such statements fall into one of two
categories:
Libel, which is a defamatory statement expressed in print, writing, pictures, signs, effigies, or
any communication embodied in physical form.15
Slander, which is a defamatory statement made orally.16
To prove defamation, a plaintiff generally must show:
A false statement purporting to be fact;
Publication or communication of that statement to a third person;
Fault amounting to at least negligence; and
Damages – that is, some harm caused to the plaintiff’s reputation.
Florida law also recognizes defamation by implication. 17 Thus, a technically true statement can be
defamatory where, by its context or the omission of other facts, it creates a false impression and
satisfies all of the other elements of defamation.18
9 Legal Information Institute, Reckless, https://www.law.cornell.edu/wex/reckless (last visited Feb. 21, 2024).
10 Legal Information Institute, Negligence, https://www.law.cornell.edu/wex/negligence (last visited Feb. 21, 2024).
11 6 Florida Practice Series s. 1.1; see Barnett v. Dept. of Fin. Serv., 303 So. 3d 508 (Fla. 2020).
12 See, e.g., Herb ert v. Lando, 441 U.S. 153 (1979) (“Given the required proof, damages liability for defamation abridges neither
freedom of speech nor freedom of the press”); see also Butts, 388 U.S. at 146 (society has “a pervasive and strong interest in
preventing and redressing attacks upon reputation”).
13 Fla. S. Ct., Standard Jury Instructions – Civil Cases (No. 00-1), 795 So. 2d 51 (2001).
14 Id.
15 Legal Information Institute, Lib el, https://www.law.cornell.edu/wex/libel (last visited Feb. 21, 2024).
16 Legal Information Institute, Slander, https://www.law.cornell.edu/wex/slander (Feb. 21, 2024).
17 Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008).
18 Id. at 1108.
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Venue for Defamation Action
For civil lawsuits not relating to real property, including defamation claims, Florida law provides two
locations where venue is proper (that is, where the lawsuit may be filed); specifically, such lawsuits may
be filed in the county where the defendant resides or the county in which the cause of action accrued.19
Florida law also prohibits a person from having more than one choice of venue for damages for
defamation founded upon any single publication, exhibition, or utterance, such as one:
Newspaper edition;
Book;
Magazine;
Presentation to an audience;
Broadcast over radio or television; or
Motion picture exhibition.20
Recovery in such an action must include all damages for the alleged tort suffered by the plaintiff in all
jurisdictions.21
Cause of Action for Defamation
A person who believes he or she is a defamation victim has two years to file a lawsuit raising the
defamation allegation, with the time in which to bring a lawsuit for damages founded upon a single
publication, exhibition, or utterance running from the time of the first publication, exhibition, or utterance
at issue in Florida.22 Further, a judgment in any jurisdiction for or against the plaintiff on the substantive
merits of an action for damages founded on a single publication, exhibition, or utterance bars any other
action for damages by the same plaintiff against the same defendant founded on the same publication,
exhibition, or utterance.23
Defenses to Defamation
Truth is an absolute defense to most defamation allegations, except for allegations of defamation by
implication; however, in such cases, truth is still available as a defense to a defendant who can prove
that the implication created by the allegedly defamatory statement is true.24 Defamation law also
shields publishers from liability for minor factual inaccuracies; thus, a statement is considered
substantially true where its “substance or gist conveys essentially the same meaning that the truth
would have conveyed.”25
Certain privileges may also provide a defense to defamation, although the degree of the defense
provided depends on whether the privilege is absolute or qualified. 26 An absolute privilege provides
complete immunity to defamation liability; in such instances, the statement’s falsity and the speaker’s
intent are irrelevant.27 However, a qualified privilege only provides immunity from defamation liability
where the defendant did not act with actual malice.28
Damages
19 S. 47.011, F.S.
20 S. 770.05, F.S.
21 Id.
22 Ss. 95.11(4)(h), F.S. and 770.07, F.S.
23 S. 770.06, F.S.
24 Butts, 388 U.S. at 151.
25 Fla. S. Ct., Standard Jury Instructions, supra note 13.
26 Legal Information Institute, Defamation, https://www.law.cornell.edu/wex/defamation (last visited Feb. 21, 2024).
27 For example, an absolute privilege extends to statements made by judges, attorneys, witnesses and jurors in a judicial procee ding
where the statements are relevant to the issue before the court. Myers v. Hodges, 44 So. 357 (1907).
28 For example, a qualified privilege extends to statements made by judges, attorneys, witnesses, and jurors in a judicial proceeding
where the statements are irrelevant to the issue before the court. Id. at 362.
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A prevailing plaintiff in a defamation action may recover his or her actual damages where the award is
supported by competent evidence.29 Such damages may be economic damages (that is, monetary
losses) or noneconomic damages (such as damages for pain and suffering or humiliation).30 Moreover,
nominal damages 31 may be awarded to vindicate a plaintiff where defamation is found but no actual
damages are proved, and punitive damages 32 may be awarded where the plaintiff proves the defendant
acted willfully, wantonly, or maliciously.33
Defamation Per Se
“Defamation per se” is a statement that is so egregious that the law presumes that it was defamatory. 34
In determining whether a statement is defamation per se, the fact-finder must look only to the language
of the statement itself without relying on implications.35 Courts have found that certain statements are
defamation per se, including a false statement:
That a person committed a crime of moral turpitude;36
Charging a person with having a sexually-transmitted or other communicable disease;
Tending to subject a person to hatred, distrust, ridicule, contempt, or disgrace, such as by
imputing that a woman is unchaste; or
Tending to impute to another conduct, characteristics, or a condition incompatible with the
proper exercise of his or her lawful business, trade, profession, or office. 37
When a defamation claim involves defamation per se, malice and damages are generally presumed as
a matter of law and thus do not need to be proved; these presumptions may justify a punitive
damages 38 award even where the jury does not find that the plaintiff suffered actual damages. 39
However, the Florida Supreme Court has found that the malice and damages presumption does not
apply against defendants who are members of the media; thus, even where defamation per se is
alleged against such a defendant, malice and damages must still be proved. 40
Discrimination Allegations
Courts typically hold that an allegation that a person is racist, sexist, homophobic, transphobic or
otherwise holds feelings of dislike or hatred toward a particular class of persons is an “opinion” not