STORAGE NAME: h0667.CIV DATE: 3/25/2025 1 FLORIDA HOUSE OF REPRESENTATIVES BILL ANALYSIS This bill analysis was prepared by nonpartisan committee staff and does not constitute an official statement of legislative intent. BILL #: HB 667 TITLE: Liability for Defamatory Statements SPONSOR(S): Grow COMPANION BILL: SB 752 (Simon) LINKED BILLS: None RELATED BILLS: None Committee References Civil Justice & Claims Judiciary SUMMARY Effect of the Bill: HB 667 provides that, where a newspaper or broadcast station publishes on the Internet an article or broadcast which a plaintiff later identifies as defamatory in a pre-suit notice, but does not timely and permanently remove the identified article or broadcast from the Internet, the plaintiff may be entitled to a punitive damages award. Further, the bill adds newspapers to the list of media outlets shielded from civil liability for defamation under the fair reporting privilege in specified circumstances but requires all potentially-shielded media outlets to, after receiving specified notice, remove defamatory statements which they published online from the Internet or risk losing the privilege and exposing themselves to civil liability. The bill also treats the continued Internet presence of a defamatory statement after such notice as a new publication for the purposes of the statute of limitations for filing a defamation lawsuit but limits the time to file defamation lawsuits tied to continued Internet publication by a media outlet to 20 years from the date of first publication. Fiscal or Economic Impact: The bill may have an indeterminate fiscal impact on the state court system and an indeterminate economic impact on certain media entities and plaintiffs. JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY ANALYSIS EFFECT OF THE BILL: Pre-Suit Notice for Media Entities The bill amends s. 770.02, F.S., to address the scenario in which a newspaper or broadcast station publishes on the Internet an article or broadcast which a plaintiff later identifies as defamation in his or her pre-suit notice. Specifically, the bill provides that, in such a scenario, to limit the plaintiff’s recovery to actual damages, the newspaper or broadcast station must, within ten days after service of the pre-suit notice, permanently remove the identified article or broadcast from the Internet. In other words, even where a newspaper or broadcast station publishes the article or broadcast in good faith and properly issues a correction, apology, or retraction as contemplated by this section (which would normally limit the plaintiff’s recoverable damages to actual damages), where the newspaper or broadcast station does not also timely and permanently remove the article or broadcast from the Internet, punitive damages may be awarded to the plaintiff should the plaintiff later prevail in a defamation suit involving such article or broadcast. 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. (Section 1) Civil Liability of Certain Media Outlets JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY 2 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 fair reporting privilege provided in that section. Specifically, the bill provides that, in addition to the other media outlets already shielded in this manner, 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. Practically speaking, this ensures that the party more directly responsible for making the defamatory statement is the party sued. (Section 2) The bill also amends s. 770.04, F.S., to provide that, when an owner, licensee, or operator of a shielded media outlet 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, but fails after receiving the notice to take reasonable steps to permanently remove the statement and any related report from the Internet, the continued Internet presence of such statement or report is a new publication for purposes of the statute of limitations for a defamation cause of action. Further, in such a scenario, the media outlet’s owner, licensee, or operator would not be entitled to the fair reporting privilege for the new 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 by a media outlet without the knowledge that it was false, could indefinitely perpetuate the harm caused by the statement; it also reflects the policy that media outlets that knowingly choose to perpetuate harm caused by defamation after becoming aware of it should not be shielded from civil liability. However, the bill also limits the time for filing a cause of action related to a defamatory statement’s continued Internet presence, as contemplated by this section, to 20 years after the date of first publication, and does not make a statement published on the Internet but not removed after notice “defamation” as a matter of law. (Section 2) Effective Date The bill provides an effective date of July 1, 2025. (Section 3) FISCAL OR ECONOMIC IMPACT: STATE GOVERNMENT: The bill may have an indeterminate fiscal impact on the state court system. Whether such fiscal impact is positive or negative depends upon the extent to which the bill increases or decreases civil actions filed in the state court system. PRIVATE SECTOR: The bill may have an indeterminate economic impact on certain media outlets to the extent that it exposes them to civil liability for defamation where they would not have otherwise been exposed, or to the payment of punitive damages where they would previously have faced only the payment of actual damages. However, the bill may have a positive economic impact on plaintiffs injured by defamation published or broadcast by certain media outlets who are able to recover damages, whether actual or punitive, where such damages would not otherwise have been recoverable. RELEVANT INFORMATION SUBJECT OVERVIEW: First Amendment Guarantees: Freedom of Speech and of the Press JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY 3 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 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 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 Mar. 25, 2025). 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 Mar. 25 2025). 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 Mar. 25, 2025). 9 Legal Information Institute, Reckless, https://www.law.cornell.edu/wex/reckless (last visited Mar. 25, 2025). 10 Legal Information Institute, Negligence, https://www.law.cornell.edu/wex/negligence (last visited Mar. 25, 2025). JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY 4 o Plaintiff suffered actual damage or loss resulting from such injury. 11 Some torts, such as defamation, 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 Defamation Per Se “Defamation per se” is a statement that is so egregious that the law presumes that it was defamatory. 19 In determining whether or not a statement is defamation per se, the fact-finder must look only to the language of the statement itself without relying on implications. 20 Courts have found that certain statements are defamation per se, including a false statement: That a person committed a crime of moral turpitude; 21 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. 22 Opinion vs. Defamation 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 Mar. 25, 2025). 16 Legal Information Institute, Slander, https://www.law.cornell.edu/wex/slander (last visited Mar. 25, 2025). 17 Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008). 18 Id. at 1108. 19 Layne v. Tribune Co., 146 So. 234 (Fla. 1933). 20 Id. at 237. 21 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 Mar. 25, 2025). 22 Blake v. Giustibelli, 182 So. 3d 881 (Fla. 4th DCA 2016) (citing Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953)). JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY 5 Courts do not consider statements of “opinion” as statements amounting to defamation, since the truth of an opinion cannot be proved or disproved. 23 For example, courts typically consider an allegation that a person is racist, sexist, homophobic, transphobic or otherwise holds feelings of dislike or hatred toward a particular class of persons to be an “opinion” not amounting to defamation; on the other hand, 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. 24 Venue for Defamation Action For civil lawsuits not relating to real property, including defamation lawsuits, 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. 25 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. 26 Instead, recovery in such an action must include all damages for the alleged tort suffered by the plaintiff in all jurisdictions. 27 Cause of Action for Defamation Florida law provides a statute of limitations 28 for the filing of defamation lawsuits. Specifically, a person who believes he or she has been defamed 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. 29 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. 30 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. 31 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.” 32 23 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). 24 Id.; See, e.g., Gibson Brothers, Inc. v. Oberlin College, 187 N.E. 3d 629 (Ohio Ct. App. 2022). 25 S. 47.011, F.S. 26 S. 770.05, F.S. 27 Id. 28 A statute of limitations bars a lawsuit’s filing after a certain amount of time elapses following an injury. This time period typically begins to run when a cause of action accrues (that is, on the date of the injury) but may also begin to run on the date the injury is discovered or on which it would have been discovered with reasonable efforts. Legal Information Institute, Statute of Limitations, https://www.law.cornell.edu/wex/statute_of_limitations (last visited Mar. 25, 2025). 29 Ss. 95.11(4)(h), F.S. and 770.07, F.S. 30 S. 770.06, F.S. 31 Butts, 388 U.S. at 151. 32 Fla. S. Ct., Standard Jury Instructions, supra note 13. JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY 6 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. 33 An absolute privilege provides complete immunity to defamation liability; in such instances, the statement’s falsity and the speaker’s intent are irrelevant. 34 However, a qualified privilege only provides immunity from defamation liability where the defendant did not act with malice. 35 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. 36 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. 37 More commonly, however, a person voluntarily injects himself or herself or is drawn into a particular controversy and thereby becomes a public figure for a limited range of issues. 38 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. 39 Mere proof of failure to investigate, without more, does not establish the reckless disregard for the truth which would constitute “actual malice.” 40 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. 41 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.” 42 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.” 43 Damages A prevailing plaintiff in a defamation action may recover his or her actual damages where the award is supported by competent evidence. 44 Such damages may be economic damages (that is, monetary losses) or noneconomic damages (such as damages for pain and suffering or humiliation). 45 Moreover, nominal damages 46 may be awarded to vindicate a plaintiff where defamation is found but no actual damages are proved, and punitive damages 47 may generally be awarded where the plaintiff proves the defendant acted willfully, wantonly, or maliciously. 48 33 Legal Information Institute, Defamation, https://www.law.cornell.edu/wex/defamation (last visited Mar. 25, 2025). 34 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). 35 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. 36 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). 37 Id. at 351. 38 Id. 39 New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 40 Gertz, 418 U.S. at 330. 41 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)). 42 Sullivan, 376 U.S. at 271. 43 Id. 44 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 Mar. 25, 2025). 45 Id. 46 “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 Mar. 25, 2025) 47 “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 Mar. 25, 2025). 48 Buis, 504 F. Supp. 2d at 1262. JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY 7 However, 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 49 award even where the jury does not find that the plaintiff suffered actual damages. 50 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. 51 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 a pre-suit notice in writing on the defendant, which notice specifies the article or broadcast and the statements therein which the plaintiff believes are defamatory. 52 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. 53 The full and fair correction, apology, or retraction must also 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. 54 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. 55 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. 56 49 “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 Mar. 25, 2025). 50 Layne, 146 So. at 236; Lawnwood Medical Center, Inc. v. Sadow, 43 So. 3d 710 (Fla. 4th DCA 2010). 51 Mid-Florida Television Corp. v. Boyles, 467 So. 2d 282 (Fla. 1985). 52 S. 770.01, F.S. 53 S. 770.02(1), F.S. 54 S. 770.02(2), F.S. 55 S. 770.04, F.S. 56 Id. JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY 8 BILL HISTORY COMMITTEE REFERENCE ACTION DATE STAFF DIRECTOR/ POLICY CHIEF ANALYSIS PREPARED BY Civil Justice & Claims Subcommittee Jones Mawn Judiciary Committee