This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0757d.JDC
DATE: 2/19/2024
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 757 Defamation, False Light, and Unauthorized Publication of Name or Likenesses
SPONSOR(S): 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
Subcommittee
8 Y, 5 N Larkin Anstead
3) Judiciary Committee 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/HB 757:
Defines “defamation or privacy tort” and modifies the venue requirements for a defamation or privacy
tort 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 a defamatory statement is not removed from the Internet as required by the bill.
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 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. STORAGE NAME: h0757d.JDC PAGE: 2
DATE: 2/19/2024
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 the 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. 8,
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. 8, 2024).
4
See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); see also, e.g., American Fed’n of Labor 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. 8, 2024). STORAGE NAME: h0757d.JDC PAGE: 3
DATE: 2/19/2024
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. 8, 2024).
10
Legal Information Institute, Negligence, https://www.law.cornell.edu/wex/negligence (last visited Feb. 8, 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., Herbert 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, Libel, https://www.law.cornell.edu/wex/libel (last visited Feb. 8, 2024).
16
Legal Information Institute, Slander, https://www.law.cornell.edu/wex/slander (Feb. 8, 2024).
17
Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008).
18
Id. at 1108. STORAGE NAME: h0757d.JDC PAGE: 4
DATE: 2/19/2024
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. 8, 2024).
27
For example, an absolute privilege extends to statements made by judges, attorneys, witnesses and jurors in a judicial proceeding
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. STORAGE NAME: h0757d.JDC PAGE: 5
DATE: 2/19/2024
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
amounting to defamation, since the truth of the opinion cannot be proved or disproved.
41
However,
courts typically hold that a false allegation that a person discriminated against a person or group of
people on the basis of race, sex, sexual orientation, gender identity, or membership in another class
amounts to defamation, as it is more of a factual assertion, the truth of which can be proven or
disproved.
42
At least one court has found that an allegation that a business discriminated against
would-be patrons on the basis of their race was defamation per se.
43
29
Army Aviation Heritage Found. And Museum, Inc. v. Buis, 504 F. Supp. 2d 1254 (N.D. Fla. 2007); Legal Information Institute, Actual
Damages, https://www.law.cornell.edu/wex/actual_damages (last visited Feb. 8, 2024).
30
Id.
31
“Nominal damages” is a trivial sum of money awarded to a plaintiff whose legal right was technically violated but who has not
established that he or she is entitled to an actual damages award because there was no accompanying loss proved. Legal Information
Institute, Nominal Damages, https://www.law.cornell.edu/wex/nominal_damages (last visited Feb. 8, 2024)
32
“Punitive damages” are damages awarded to punish the defendant and deter the future bad behavior of others. Legal Information
Institute, Punitive Damages, https://www.law.cornell.edu/wex/punitive_damages (last visited Feb. 8, 2024).
33
Buis, 504 F. Supp. 2d at 1262.
34
Layne v. Tribune Co., 146 So. 234 (Fla. 1933).
35
Id. at 237.
36
A “crime of moral turpitude” is a crime involving wicked or deviant behavior constituting an immoral, unethical, or unjust departure
from ordinary social standards such that it would shock a community. Legal Information Institute, Moral Turpitude,
https://www.law.cornell.edu/wex/moral_turpitude (last visited Feb. 8, 2024).
37
Blake v. Giustibelli, 182 So. 3d 881 (Fla. 4th DCA 2016) (citing Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953)).
38
“Punitive damages” are damages awarded to punish the defendant and deter the future bad behavior of others. Such damages are
usually only available where a plaintiff proves the defendant acted willfully, wantonly, or maliciously. Legal Information Institute, Punitive
Damages, https://www.law.cornell.edu/wex/punitive_damages (last visited Feb. 8, 2024).
39
Layne, 146 So. at 236; Lawnwood Medical Center, Inc. v. Sadow, 43 So. 3d 710 (Fla. 4th DCA 2010).
40
Mid-Florida Television Corp. v. Boyles, 467 So. 2d 282 (Fla. 1985).
41
See, e.g., Williams v. Lazer, 495 P.3d 93 (Nev. 2021); Garrard v. Charleston Cnty. Sch. Dist., 838 S.E. 2d 698 (S.C. Ct. App. 2019).
42
See, e.g., Gibson Brothers, Inc. v. Oberlin College, 187 N.E. 3d 629 (Ohio Ct. App. 2022).
43
Id. at 653. STORAGE NAME: h0757d.JDC PAGE: 6
DATE: 2/19/2024
Pre-Suit Notice for Media Entities
Before a defamation lawsuit may be filed in Florida against a newspaper, periodical, or other medium
for publishing or broadcasting a defamatory statement, the plaintiff must, at least five days before filing
suit, serve notice in writing on the defendant, which notice specifies the article or broadcast and the
statements therein which the plaintiff alleges are defamatory.
44
Further, the plaintiff in such a suit is
limited to recovering his or her actual damages if it appears from the evidence presented at trial that:
An article or broadcast was published in good faith;
Its falsity was due to an honest mistake of facts;
There were reasonable grounds for believing the statement at issue was true; and
Within a specified time period, a full and fair correction, apology, or retraction was, in the case
of a:
o Newspaper or periodical, published in the same editions or corresponding issues of the
newspaper or periodical in which the defamatory article appeared, and in as
conspicuous a place and type as said article; or
o Broadcast, the correction, apology, or retraction was broadcast at a comparable time.
45
However, “full and fair correction” must be made, in the case of a:
Broadcast or a daily or weekly newspaper or periodical, within 10 days after service of notice;
Newspaper or periodical published semi-monthly, within 20 days after service of notice;
Newspaper or periodical published monthly, within 45 days of the notice; and
Newspaper or periodical published less frequently than monthly, in the next issue, if notice is
served no later than 45 days before such publication.
46
In other words, the plaintiff may not recover punitive damages where the defendant newspaper or
broadcast station published or broadcast the defamatory statement in good faith and issued a timely
and appropriate correction, apology, or retraction.
Civil Liability of Certain Media Outlets
Florida law provides a fair reporting privilege, which privilege shields from civil liability a radio or
television broadcasting station owner, licensee, or operator, and the agents and employees thereof, for
any defamatory statement published or uttered in or as part of a radio or television broadcast by one
other than such owner, licensee, or operator, or an agent or employee thereof, unless the plaintiff
alleges and proves that such owner, licensee, or operator, or an agent or employee thereof, failed to
exercise due care to prevent the publication or utterance of such statement in such broadcasts.
47
In this
context, the exercise of due care is construed to include the bona fide compliance with any federal law
or the regulation of any federal regulatory agency.
48
Public Figures
Courts classify persons who have achieved a certain measure of notoriety, whether by achievement or
celebrity, or who hold public office, as “public figures” for the purpose of defamation law.
49
A person
may achieve such pervasive fame or notoriety that he or she becomes a public figure for all purposes
and in all contexts of his or her life.
50
More commonly, however, a person voluntarily injects himself or
is drawn into a particular controversy and thereby becomes a public figure for a limited range of
issues.
51
44
S. 770.01, F.S.
45
S. 770.02(1), F.S.
46
S. 770.02(2), F.S.
47
S. 770.04, F.S.
48
Id.
49
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
50
Id. at 351.
51
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DATE: 2/19/2024
Recognizing the unique role public figures play in society, the United States Supreme Court has held
that the negligence standard applicable in a defamation claim involving a private citizen is the
inappropriate standard in a defamation claim brought by a public figure; instead, a public figure must
prove the statement at issue was made with “actual malice” – that is, with knowledge that it was false or
with reckless disregard as to whether it was false or not.
52
Mere proof of failure to investigate, without
more, does not establish the reckless disregard for the truth which would constitute “actual malice.”
53
In justifying the actual malice standard, the U.S. Supreme Court has noted that criticism of official
conduct does not lose its constitutional protection merely because it is effective criticism and hence
diminishes a public figure’s official reputation.
54
Further, the Court has noted that authoritative
interpretations of the First Amendment’s constitutional guarantees do not turn upon “the truth,
popularity, or social utility of the ideas and beliefs which are offered.”
55
Erroneous statements,
according to the Court, are inevitable in free debate and must be protected if the freedoms of
expression are to survive; “cases which impose liability for erroneous reports of the political conduct of
officials reflect the obsolete doctrine that the governed must not criticize their governors.”
56
Invasion of Privacy
Florida law recognizes a right to privacy – that is, the right to be let alone and live in a community
without being held up to the public gaze against one’s will.
57
An invasion of privacy claim is a tort
(“privacy tort”) that generally falls into one of the following three categories:
58
Unauthorized publication of another’s name or likeness;
Unreasonable public disclosure of a private fact; or
Publicity that unreasonably places another in a false light before the public.
59
A person who believes he or she has been the victim of a privacy tort generally has four years to bring
a lawsuit raising the invasion of privacy allegations; however, an unauthorized publication cause of
action may not be brought if the name or likeness used belongs to a decedent and the use on which the
action is based occurred more than 40 years after the decedent’s death.
60
Further, as with defamation:
The cause of action for damages founded upon a single publication, exhibition, or utterance is
deemed to have accrued at the time of the first publication, exhibition, or utterance thereof in
Florida.
61
No person may have more than one choice of venue for damages for a privacy tort founded
upon any single publication, exhibition, or utterance and recovery in such an action must include
all damages for any such tort suffered by the plaintiff in all jurisdictions.
62
A public figure has a lower expectation of privacy that a non-public figure.
63
However, unlike in defamation claims, mere spoken words do not give rise to a privacy tort; the conduct
at issue must be published or broadcast in some fashion.
64
Further, neither the truth of the published
matter nor the absence of malice or wrongful motive on the part of the writer or publisher constitute a
defense to a privacy tort.
65
52
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
53
Gertz, 418 U.S. at 330.
54
Sullivan, 376 U.S. at 271-272 (citing N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963) and quoting Sweeney v. Patterson, 128 F. 2d
457 (D.C. Cir. 1942)).
55
Sullivan, 376 U.S. at 271.
56
Id.
57
Cason v. Baskin, 20 So. 2d 243 (Fla. 1944). This is not to be confused with the right to privacy guaranteed in article I, section 23 of
the Florida Constitution, which generally guarantees Floridians a right to be free from government intrusion into their private lives.
58
A fourth category, unreasonable intrusion into another’s seclusion, is not discussed here, as it does not require publication.
59
Restatement (Second) of Torts s. 652A.
60
Ss. 95.11(3)(o) and 540.08(4), F.S.; Epic Metals Corp. v. Condec, Inc., 867 F. Supp. 1009 (M.D. Fla. 1994).
61
S. 770.07, F.S.
62
S. 770.05, F.S.
63
Cason, 20 So. 2d at 251.
64
Id. at 251-252; In re Carter, 411 B.R. 730 (U.S. Bankr. Ct., M.D. Fla. 2009).
65
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DATE: 2/19/2024
Damages available to a prevailing plaintiff in a privacy tort include actual damages and punitive
damages where the defendant’s conduct was willful, wanton, or malicious.
66
However, the plaintiff need
not prove actual damages to prevail in a privacy tort claim and may recover nominal damages if actual
damages are not proved.
67
Unauthorized Publication
Florida courts recognize the common law tort of unauthorized publication of another’s name or likeness
(sometimes referred to as “appropriation”).
68
Florida law also codifies this tort in s. 540.08, F.S.,
providing generally the same elements as the common law tort.
69
Specifically, s. 540.08, F.S., prohibits
a person from publishing, printing, displaying, or otherwise publicly using for purposes of trade or for
any commercial or advertising purpose
70
the name, photograph, or other likeness of any natural person
without the express written or oral consent to such use given by:
The natural person whose name or likeness is to be used;
71
Any other person authorized in writing by such person to license the commercial use of his or
her name or likeness; or
If such person is deceased:
o Any person authorized in writing to license the commercial use of the decedent’s name
or likeness; or
o If no person is so authorized, then by the decedent’s surviving spouse or any one of his
or her surviving children.
72
If proper consent is not obtained, the person whose name or likeness was appropriated, or any person
authorized to consent to the commercial use of the name or likeness, may sue under the statutory
cause of action to enjoin the unauthorized use and recover damages, including an amount that would
have been a reasonable royalty.
73
The court may also impose a civil penalty of up to $1,000 per
violation if the person whose name or likeness was appropriated is a member of the armed forces.
74
However, only the individual whose privacy was invaded may sue for unauthorized publication at
common law.
75
Further, the statutory cause of action does not apply to, and Florida courts generally recognize common
law exceptions for:
The publication, printing, display, or use of the name or likeness of any person in any
newspaper, magazine, book, news broadcast or telecast, or other news medium or publication
as part of any bona fide news report or presentation having a current and legitimate public
interest and where such name or likeness is not used for advertising purposes;
The use of a name or likeness in connection with the resale or other distribution of literary,
musical, or artistic productions or other merchandise or property where the person has
66
James v. Intelligent Software Solutions, 2017 WL 5634293 (11th Cir. 2017).
67
Facchina v. Mut. Benefits Corp., 735 So. 2d 499 (Fla. 4th DCA 1999).
68
Coton v. Televised Visual X-Ography, Inc., 740 F. Supp.2d 1299 (M.D. Fla. 2010).
69
A plaintiff may plead an unauthorized publication cause of action under both the statutory and common law remedies. A cause of
action may exist under the common law tort regardless of whether the unauthorized publication was for trade, commercial, or
advertising purposes as required by statute. Lane v. MRA Holdings, LLC, 242 F. Supp. 2d 1205 (M.D. Fla. 2002).
70
A “commercial or advertising purpose” does not include publications which do not directly promote a product or service. It is not
enough that a publication is offered for sale; rather, the liability inquiry turns on whether the plaintiff’s name or likeness is associated
with something else within the publication. Tyne v. Time Warner Entertainment Co., L.P., 901 So. 2d 802 (Fla. 2005); Loft v. Fuller, 408
So. 2d 619 (Fla. 4th DCA 1981); Valentine v. CBS, Inc., 698 F. 2d 430 (11th Cir. 1983).
71
Consent may only be given on behalf of a minor by the guardian of his or her person or by either parent. S. 540.08(6), F.S.
72
A person’s “surviving spouse” is the person’s surviving spouse under the law of his or her domicile at the time of his or her death,
whether or not the spouse has later remarried, and a person’s “surviving children” are his or her immediate offspring and any children
legally adopted by the person. S. 540.08(1) and (6), F.S.
73
S. 540.08(2), F.S.; Coton, 740 F. Supp. 2d at 1312.
74
“Member of the armed forces” means an officer or enlisted member of the Army, Navy, Air Force, Marine Corps, Space Force, Coast
Guard of the United States, the Florida National Guard, or the United States Reserve Forces, and includes any officer or enlisted
member who died due to injuries sustained in the line of duty. S. 540.08(2) and (3), F.S.; Coton, 740 F. Supp. 2d at 1312.
75
Loft, 408 So. at 623-625. STORAGE NAME: h0757d.JDC PAGE: 9
DATE: 2/19/2024
consented to the use of his or her name or likeness on or in connection with the initial sale or
distribution of the items; or
Any photograph of a person solely as a member of the public, where such person is not named
or otherwise identified in or in connection with the use of such photograph.
76
Public Disclosure of Private Facts
Florida courts recognize the common law tort of unreasonable public disclosure of private facts, which
cause of action may only be brought by the person whose privacy was so invaded.
77
To prevail in a
public disclosure claim, the plaintiff must prove that the:
Defendant publicized a truthful but private
78
fact concerning the plaintiff; and
Matter publicized is of a kind that:
o Publication would be highly offensive to a reasonable person; and
o Is not of legitimate pubic concern – that is, the matter is not newsworthy.
79
Generally, the disclosure must also have been made to the public at large or to so many persons that
the matter is substantially certain to become public knowledge.
80
There is no precise number of
persons to whom disclosure must be made to satisfy this requirement; instead the court must consider
the facts of each case in determining whether the publication was sufficiently “public.”
81
Further, the
plaintiff’s consent to the publication is an absolute defense, which consent may be express or implied.
82
False Light
False light is a common law tort that Florida courts no longer recognize, although other jurisdictions do
continue to recognize it. Traditionally, this tort arose out of a statement that would be highly offensive to
a reasonable person; unlike defamation, which affords a remedy for damages to a person’s reputation,
false light affords a remedy for emotional harm.
83
Thus, to prevail in a false light claim, a plaintiff
traditionally had to prove that the:
Publication places the plaintiff in a false light that would be highly offensive to a reasonable
person; and
Defendant acted knowingly or in reckless disregard as to the false light in which the plaintiff
would be placed.
84
As with defamation by implication, truth was not an absolute defense to a false light claim, as such a
claim could exist where the facts alleged are true but the implication or innuendo created by the
juxtaposition or omission of the facts is false.
85
However, truth was available to a defendant in a false
light claim as a defense where the defendant could show that the implication or innuendo created was
true.
86
76
S. 540.08(4), F.S.; see, e.g., Jacova v. S. Radio & Television Co., 83 So. 2d 34 (Fla. 1955); Zim v. W. Publ’g Co., 573 F. 2d 1318
(5th Cir. 1978).
77
Cape Publications, Inc. v. Hitchner, 549 So. 2d 1374 (Fla. 1989); Tyne, 204 F. Supp. 2d at 1344.
78
To be considered “private,” a fact cannot already have been “in the public eye”; that is, the facts cannot already have been publicized
by another source or through the plaintiff’s failure to conceal them. Heath v. Playboy Enter. Inc., 732 F. Supp. 1145 (S.D. Fla. 1990);
Doe v. Univision Television Group, Inc., 717 So. 2d 63 (Fla. 3d DCA 1998).
79
There is no set standard for what is considered “newsworthy.” Instead, the courts look to the specific facts of each case to determine
the newsworthiness of the private information publicized. Hitchner, 549 So. 2d at 1377; Restatement (Second) of Torts § 652D.
80
Guarino v. Mandel, 327 So. 3d 853 (Fla. 4th DCA 2021).
81
Leach v. District Bd. of Trustees of Palm Beach, 244 F. Supp. 3d 1334 (S.D. Fla. 2017).
82
Heath, 732 F. Supp. At 1150.
83
Rapp, 997 So. 2d at 1108; Restatement (Second) of Torts § 652E; Gannet Co., Inc. v. Anderson, 947 So. 2d 1 (Fla. 1st DCA 2006);
Robert, Rafii, Defamation vs. False Light: What Is the Difference?, https://www.findlaw.com/injury/torts-and-personal-
injuries/defamation-vs--false-light--what-is-the-difference-.html (last visited Feb. 8, 2024) (noting that “[d]efamation is meant to protect
reputation. A non-offensive statement about a person can harm…reputation. As such, defamation does not require that the statement is
offensive or embarrassing. False light demands that the implication is offensive or embarrassing to a reasonable person”).
84
Restatement (Second) of Torts § 652E.
85
Lane, 242 F. Supp. 2d at 1221.
86
Id. at 1222. STORAGE NAME: h0757d.JDC PAGE: 10
DATE: 2/19/2024
Florida courts recognized the common law tort of false light until 2008,
87
when the Florida Supreme
Court held that it would no longer recognize false light because it overlapped so substantially with
defamation.
88
Journalist’s Privilege
A legal privilege generally operates to keep communications or other information private to promote
open communication and information-sharing in situations where such communication and information-
sharing should be encouraged; such privileges can be affirmatively raised in legal proceedings to shield
protected communications and information, but can also generally be waived by the person for whose
benefit the privilege exists.
89
One such privilege is the journalist’s privilege, which, generally speaking, affords journalists the right
not to disclose the identity of witnesses and other materials in court. Although it is journalists who
invoke the journalist’s privilege, the theory behind the privilege is to shield informants who have
information of value to the public, to encourage the free flow of such information.
90
Forty-nine states (including Florida) and the District of Columbia currently recognize a journalist’s
privilege either in statute or under the common law; some states make the privilege absolute, while
others make the privilege qualified, and the laws vary as to who may claim the privilege and to what
information it applies.
91
The United States Supreme Court has also recognized a journalist’s limited
First Amendment right to keep confidential the names of his or her sources and unpublished
information provided by such sources; most federal courts also recognize such a privilege, but the
scope of the privilege varies.
92
Journalist’s Privilege in Florida
Florida law affords a professional journalist
93
a qualified privilege not to be a witness concerning, and
not to disclose the information, including the identity of any source, that the professional journalist has
obtained while actively gathering news.
94
This privilege applies only to information or eyewitness
observations obtained within the professional journalist’s normal scope of employment, and a journalist
does not waive the privilege simply by publishing or broadcasting information.
95
However, the privilege
does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes;
thus, a professional journalist may be compelled to testify before a grand jury or in other criminal
proceedings regarding criminal activity which he or she witnessed and to turn over any physical
evidence or recordings of the crime he or she may have obtained.
96
Further, because the journalist’s privilege is qualified, it may be overcome by a party who makes a
clear and specific showing that:
The information is relevant and material to unresolved issues that have been raised in the
proceeding for which the information is sought;
87
See, e.g., Gannet, 947 So. 2d at 11.; see also Heekin v. CBS Broadcasting, Inc., 789 So. 2d 355 (Fla. 2d DCA 2001).
88
Rapp, 997 So. 2d at 1113-1114.
89
Legal Information Institute, Privilege, https://www.law.cornell.edu/wex/privilege (last visited Feb. 8, 2024).
90
Geoffrey R. Stone, Why We Need A Federal Reporter’s Privilege, 34 Hofstra L. Rev. 39 (2005),
https://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v34n01_bb4_ideas-essays_stone_final.pdf (last visited Feb. 8,
2024).
91
Wyoming does not currently recognize a journalist’s privilege. Student Press Law Center, State-by-State Guide to the Reporter’s
Privilege for Student Media, https://splc.org/2019/08/state-by-state-guide-to-the-reporters-privilege-for-student-media/ (last visited Feb.
8, 2024); Justia, Reporter Shield Laws https://www.justia.com/communications-internet/reporter-shield-laws/ (last visited Feb. 8, 2024).
92
Branzburg v. Hayes, 408 U.S. 665 (1972).
93
A “professional journalist” is a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or
publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or an independent
contractor for a newspaper; news journal; news agency; press association; wire service; radio or television station; network; or news
magazine. S. 90.5015(1), F.S.
94
“News” means information of public concern relating to local, statewide, national, or worldwide issues or events. S. 90.5015(2), F.S.
95
S. 90.5015(2) and (4), F.S.; State v. Davis, 720 So. 2d 220 (Fla. 1998).
96
S. 90.5015(2), F.S.; Miami Herald Publishing Co. v. Morejon, 561 So. 2d 577(Fla. 1990) (“There is no privilege, qualified, limited, or
otherwise, which protects journalists from testifying as to their eyewitness observations of a relevant event in a subsequent court
proceeding.”) STORAGE NAME: h0757d.JDC PAGE: 11
DATE: 2/19/2024
The information cannot be obtained from alternative sources; and
A compelling interest exists for the required information disclosure.
97
The court, in turn, must order disclosure only of that portion of the information for which such a showing
was made and support such order with clear and specific findings made after a hearing.
98
Effect of Proposed Changes
Defamation or Privacy Tort Defined
CS/HB 757 amends s. 770.05, F.S., to define the term “defamation or privacy tort,” as used in chapter
770, F.S., to mean libel, slander, invasion of privacy, or any other tort founded upon a single
publication, exhibition, or utterance, including any one:
Newspaper edition.
Book.
Magazine.
Presentation to an audience.
Radio or television broadcast.
Motion picture exhibition.
Internet publication, exhibition, or utterance.
This definition under the bill does not change any of the elements of defamation or a privacy tort, and
does not make something defamation or a privacy tort that is not already such under current law.
Pre-Suit Notice for Media Entities
The bill amends s. 770.02, F.S., to provide that, if a newspaper or broadcast station published the
article or broadcast identified in the plaintiff’s pre-suit notice on the Internet, such article or broadcast
must be permanently removed from the Internet within 10 days after service of such notice in order to
limit the plaintiff’s recovery to actual damages. In other words, even where a newspaper or broadcast
station has properly issued a correction, apology, or retraction as contemplated by this section, where
the newspaper or broadcast station does not also timely and permanently remove the article or
broadcast from the Internet, punitive damages may still be assessed. This accounts for the reality that,
in the digital age, the printing or broadcasting of a correction, apology, or retraction alone may be
insufficient to remedy the harm caused by a defamatory statement’s publication or broadcast, as the
statement may continue to exist on the Internet and indefinitely perpetuate the plaintiff’s harm.
Civil Liability of Certain Media Outlets
The bill amends s. 770.04, F.S., to add a newspaper owner, licensee, or operator, and the agents or
employees thereof, to the list of persons affiliated with media outlets who are shielded from liability in
specified circumstances by the reporting privilege provided in this section. Specifically, the bill provides
that a newspaper owner, licensee, or operator, and the agents and employees thereof, are not liable for
any defamatory statement published or uttered in a newspaper article by one other than such owner,
licensee, or operator, or an agent or employee thereof, unless the plaintiff alleges and proves that such
owner, licensee, or operator, or an agent or employee thereof, failed to exercise due care to prevent the
publication or utterance of such statement in such newspaper article.
However, the bill also amends s. 770.04, F.S., to provide that, when an owner, licensee, or operator of
shielded media entity publishes a defamatory statement on the Internet with no knowledge of the
statement’s falsity and thereafter receives notice that such statement has been found in a judicial
proceeding to be false, or receives notice of facts that would cause a reasonable person to conclude
that such statement was false, and fails to take reasonable steps to permanently remove the statement
and any related report from the Internet, the continued appearance of such statement or report on the
Internet after receipt of the notice is a new publication for purposes of the statute of limitations, and the
97
S. 90.5015(2), F.S.
98
S. 90.5015(3), F.S. STORAGE NAME: h0757d.JDC PAGE: 12
DATE: 2/19/2024
owner, licensee, or operator would not be entitled to a fair reporting privilege for such new publication.
In other words, even where the media entity’s owner, licensee, or operator exercised due care as to the
original publication of the statement in a radio or television broadcast or a newspaper article, where
such statement is also published on the Internet and the owner, licensee, or operator fails to take
reasonable steps to remove it therefrom, the owner, licensee, or operator loses the benefit of the fair
reporting privilege and the liability shield it provided as to the Internet publication. This accounts for the
reality that, in the digital age, the continued publication of a defamatory statement on the Internet, even
where such statement was originally published without the knowledge that it was false, could
indefinitely perpetuate the harm caused by the statement, and reflects the policy that persons who
knowingly choose to perpetuate that harm should not be shielded from civil liability.
Venue for a Defamation or Privacy Tort
The bill amends s. 770.05, F.S., to expand the venue options available to a person suing for a
defamation or privacy tort. Specifically, the bill provides that, when the damages for a defamation or
privacy tort are based on material published through the:
Radio or television, venue is proper in any county where the material was accessed.
Internet, venue is proper in any county in the state.
These changes update venue laws as they pertain to defamation or privacy tort actions, reflecting the
wide reach of the internet and certain broadcasts through which defamatory statements and private
information are easily spread.
Veracity Hearings in Defamation of Privacy Tort Actions
The bill creates s. 770.107, F.S., to authorize a “veracity hearing” in defamation or privacy tort actions.
Specifically, the bill requires a court, upon motion by any party to a defamation or privacy tort action, to
conduct an evidentiary hearing to determine two issues, which issues may be dispositive, as follows:
Whether a statement is a state of fact or opinion.
The veracity of any statement of fact that constitutes the basis for the cause of action.
Under the bill, the court must hear such motion within 60 days of service thereof, and the court’s review
is limited solely to determining the nature of the statement and its veracity. The bill also prohibits a
court, in ruling upon such a motion, from issuing findings about:
Whether the statement of fact is defamation per se, defamation per quod, or a privacy tort;
Whether the plaintiff qualifies as a public figure or limited public figure; or
Whether the defendant acted negligently, recklessly, intentionally, or with actual malice.
Anonymous Sources
The bill creates s. 770.11, F.S., to provide that there is a rebuttable presumption that a publisher acted
with actual malice in publishing a statement if a public figure plaintiff can prove that the published
statement is false and the publisher relied on an anonymous source for the statement. Practically
speaking, a journalist who relies on information supplied by an anonymous source in making a
statement, which statement turns out to be false, and who chooses to exercise the journalist’s privilege
by maintaining the confidentiality of a source’s identity, would have to overcome the presumption of
actual malice to avoid civil liability.
False Light through Artificial Intelligence
The bill creates s. 770.15, F.S., to resuscitate the tort of false light in the limited context of the use of
artificial intelligence. Specifically, the bill provides that a person who uses artificial intelligence to create
or edit any form of media so that it attributes something false to or leads a reasonable viewer to believe
something false about another is subject to liability if all of the following apply:
The media is published, distributed, or otherwise placed before the public;
The false light in which the other person was placed would be highly offensive to a reasonable
person; and STORAGE NAME: h0757d.JDC PAGE: 13
DATE: 2/19/2024
The person had knowledge of or acted in reckless disregard as to the media’s false
implications.
The bill defines “artificial intelligence” for the purposes of this section as the theory and development of
computer systems that are designed to simulate human intelligence through machine learning and
perform tasks that would normally require human involvement, such as visual perception, speech
recognition, decision-making, and translation between languages. The bill also expands the original tort
of false light by specifying that this section incorporates the standards set forth under Ch. 770, F.S., for
defamation causes of action “to the extent necessary.”
Practically speaking, where artificial intelligence is used to create or edit any form of media, a person
represented therein could likely bring a defamation claim under current law where the media so created
or edited is used in a way that defames the person. However, such a person, when attempting to prove
damages, would generally have to show that his or her reputation had suffered. By generally
resuscitating the tort of false light in this limited context, the bill requires a plaintiff attempting to prove
damages to show only that he or she suffered emotional harm; this is likely an easier standard for a
plaintiff to meet.
Severability
The bill provides for severability. Specifically, the bill provides that, if a court holds any provision of the
bill or its application to any person or circumstances invalid, the invalidity does not affect the bill’s other
provisions or applications which can be given effect without the invalid provision or application.
Effective Date
The bill provides an effective date of July 1, 2024.
B. SECTION DIRECTORY:
Section 1: Amends s. 770.02, F.S., relating to correction, apology, or retraction by newspaper or
broadcast station.
Section 2: Amends s. 770.04, F.S., relating to civil liability of radio or television broadcasting stations;
care to prevent publication or utterance required.
Section 3: Amends s. 770.05, F.S., relating to limitation of choice of venue.
Section 4: Creates s. 770.107, F.S., relating to veracity hearings in defamation or privacy tort actions.
Section 5: Creates s. 770.11, F.S., relating to presumption regarding anonymous sources when the
statement made about a public figure is false.
Section 6: Creates s. 770.15, F.S., relating to using artificial intelligence to place person in false light.
Section 7: Reenacts s. 770.06, F.S., relating to adverse judgment in any jurisdiction a bar to additional
action.
Section 8: Reenacts s. 770.07, F.S., relating to cause of action, time of accrual.
Section 9: Reenacts s. 770.08, F.S., relating to limitation on recovery of damages.
Section 10: Provides for severability.
Section 11: Provides an effective date of July 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS: STORAGE NAME: h0757d.JDC PAGE: 14
DATE: 2/19/2024
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a positive fiscal impact on a public figure plaintiff who obtains the benefit of an actual
malice presumption which a publisher is unable to overcome. Likewise, the bill may have a negative
fiscal impact on a publisher who relies on an anonymous source for a statement about a public figure,
which statement turns out to be false, and who is unable to overcome the presumption that the
statement was published with actual malice.
The bill may also have a positive fiscal impact on a plaintiff who prevails on a false light claim as
resuscitated by the bill, which requires only a showing of emotional harm when attempting to prove
damages, where such plaintiff would not have prevailed had he or she raised a defamation claim, which
requires a showing of reputational harm when attempting to prove damages. Likewise, the bill may
have a negative fiscal impact on a defendant who is found liable for a false light claim as resuscitated
by the bill where such defendant would not have been found liable had the plaintiff raised a defamation
claim instead.
Further, the bill may have a positive fiscal impact on a plaintiff who prevails in a lawsuit against a media
entity involving publication of a statement on the Internet where the media entity would have previously
been shielded from civil liability, or where the plaintiff is able to obtain punitive damages against a
media entity even after the entity issues a correction, apology, or retraction. Likewise, the bill may have
a negative fiscal impact on a media entity who does not take required steps to remove a publication
from the Internet and therefore loses its liability shield or is assessed punitive damages.
Finally, the bill may have a positive economic impact on the private sector, to the extent that a “veracity
hearing” leads to the earlier resolution of a defamation or privacy tort action and thereby reduces
litigation costs for the parties to such action.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties or municipalities have to
raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
The bill resuscitates the tort of false light in the context of the use of artificial intelligence, limits a
media entity’s civil liability shield and ability to avoid punitive damages in specified circumstances,
and creates a rebuttable presumption that a publisher acted with actual malice in publishing a
statement where a public figure plaintiff proves such statement is false and where the publisher
chose to exercise the journalist’s privilege by maintaining the confidentiality of a source’s identity.
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 STORAGE NAME: h0757d.JDC PAGE: 15
DATE: 2/19/2024
states through the Fourteenth Amendment, thus restricting the states in enacting laws which
abridge the freedom of speech or of the press.
In claims for defamation and invasion of privacy, 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.
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On January 18, 2024, the Civil Justice Subcommittee adopted two amendments and reported the bill
favorably as a committee substitute. The amendments:
Extended the liability shield under the fair reporting privilege to newspaper entities.
Limited a media entity’s liability shield under the fair reporting privilege and ability to avoid punitive
damages where a defamatory statement is not removed from the Internet as required by the bill.
Authorized a “veracity hearing” in specified circumstances.
This analysis is drafted to the Committee Substitute as passed by the Civil Justice Subcommittee.