Florida Defamation Law: Qualified or Conditional Privilege

pinoccio.jpgThe elements of defamation are that the Defendant published a false statement, that the statement was communicated to a third party, and that the Plaintiff suffered damages as a result of the publication. Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978).

In some instances, a qualified privilege exists in the communication. For the communication to be privileged, it “must be made by a person having a duty or interest in the subject matter, to another having a corresponding duty or interest.” Axelrod at 1051. The nature of the duty or interest may be public, personal or private, either legal, judicial, political, moral, or social. It need not be one having the force of a legal obligation; it may be one of imperfect obligation. The interest may arise out of the relationship or status of the parties. Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942). It is called a qualified or conditional privilege, because the libelous statement must be made in good faith, that is, with a good motive, and not for the purpose of harming the subject of the defamation. Drennen v. Washington Electric Corp., 328 So.2d 52, 55 (Fla. 1st DCA 1976).

Some false communications, such as those tending to degrade a person, bring him into ill repute, and destroy confidence in his integrity, are actionable per se, meaning that the Plaintiff is presumed to have suffered damages. See Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887); Stewart v. Codrington, 55 Fla. 327, 45 So. 809 (1908); Harriss v. Metropolis Co., 118 Fla. 825, 160 So. 205 (1935).

When the privilege applies, the Plaintiff must prove express or malice in fact. Coogler v. Rhodes, 38 Fla. 240, 21 So. 109 (1897); Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); and Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907). Accordingly, the qualified privilege eliminates the per se presumption, making it more difficult for the Plaintiff to prove an essential element of the case.

Note regarding the element of publication: Our firm was recently approached by an executive of a large local company about false statements made against him by the chief executive officer to board members, resulting in his termination. Although we believed that we could overcome the qualified privilege, we rejected the case based on the holding in American Airlines v. Geddes, 960 So.2d 830 (Fla. 3d DCA 2007), that publication could not be established where the defamatory remarks were made to executives and management level employees only.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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