One of the recurrent issues that Miami business lawyers deal with often involves clients suing for defamation, or vice versa, clients being sued for defamation. Defamation, by definition, is the action of damaging the good reputation of someone. It usually involves a false statement of fact that was published or spoken with fault, or in other words, as a result of negligence or malice. There are various state laws that help define defamation, but most defamation always involves slander—spoken defamation, or libel—written defamation. Under Florida Law, an individual needs to prove five elements in order for a statement to be considered defamation. The five elements are as follows: 1) a false statement concerning a person or company; 2) the statement was published to a third party; 3) there was an intent to publish the statement by the author of the statement; and 4) actual damages. With enough substance and facts, the three first elements are often easy to prove, however many struggle to show or prove actual damages. This is when business lawyers turn to defamation per se.
What is Defamation Per Se?
In a multicultural city like Miami, handling a defamation case is almost unavoidable for most business lawyers. However, as experienced as they may be, proving the fourth element of defamation—actual damages—often becomes very difficult. Therefore, attorneys instead turn to claiming a defamation per se case. Defamation per se basically means that the content of the published false statement is so inherently damaging, that damages are presumed to exist from the mere fact that the statement was made. Common examples of defamation per se include, but are not limited to: 1) when the statement charges that the person has committed an infamous crime; 2) the statement charges the person with having an infectious disease or a mental illness; 3) the statement subjects one to hatred, ridicule, distrust, or contempt; or 4) the statement tends to injure one in his trade or profession.
Why claim Defamation Per Se?
So why would an individual from Florida choose to sue for defamation per se rather than defamation? What are the individuals benefits? To start, because defamation per se considers false statements so inherently damaging, the individual need not prove the element for malice. Malice is presumed from the nature of the defamation. Furthermore, the damages awarded for defamation per se are quite a few. First, general damages are awarded for past and future harm sustained to individuals reputation in the community as well as mental or emotional anguish and personal humiliation. There are also special damages awarded for any specific economic loss caused by the defamation. For example things like loss of profits or loss of a job. Nominal damages might also be awarded when defamation per se has occurred but no serious harm to the individuals reputation was done. Punitive damages or additional sums are also often awarded in order to punish or set an example when the defendant’s actions were willful or malicious.
Public vs. Private Figures
With rising social media trends, many individuals in Miami are now becoming bloggers, and pursuing this lifestyle as their careers. Today an individual who might have been considered private can now be considered a public figure simply based on his/her social media presence. In Florida, distinguishing between a public vs a private figure is important when dealing with defamation per se cases. It is important to keep in mind that under Florida law, the state no longer recognizes damages for defamation per se in lawsuits against media defendants. In other words, defamation per se is usually a claim when a statement accuses an individual of committing a crime, or imputes to the individual conduct, characteristics, or a condition incompatible with the proper exercise of his or her lawful business, trade, profession, or office.