Is a notice of defamation required before suing a blog?

FLORIDA HAS a particular law that pertains to serving notice, like sending a demand letter, or cease and desist letter, prior to filing a lawsuit for defamation. However, written notice of defamation is only required in certain circumstances. The question of whether such notice is necessary is not always so easy to answer, as the statute lacks specificity. Section 770.01, Florida Statutes, provides:

Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.

The key phrase, which cases so much dispute, is “or other medium” (underlined above). When those words were added to the statute, in 1976, blogs and social media — and the Internet as we know it — did not exist.

Thanks (or not) to the Internet, nowadays, most written defamation, or libel, is published online. A common question in lawsuits involving Internet defamation is therefore whether the site on which the post was was published is considered an “other medium” under the statute.

The reason this question is important is if no notice is sent when one is required, a lawsuit can be dismissed. See Plant Food Sys., Inc. v. Irey, 165 So. 3d 859, 859-60 (Fla. 5th DCA 2015).

Are blogs considered “media” defendants under § 770.01, Fla. Stat.?

Not all blogs are alike, and not all Internet postings are alike. Clearly, not everything on the Internet is a “medium” under the statute, even though it may appear to be a blog. So how do you determine which blogs are the “media”?

The Fifth District Court of Appeal considered this question in Comins v. Vanvoorhis, 135 So. 3d 545, 555 (Fla. 5th DCA 2014). It recognized:

There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even-handed treatment of their subjects.

To determine whether a blog was a media defendant, the court in Comins examined whether the blog in question was “operated to further the free dissemination of information or disinterested and neutral commentary or editorializing as to matters of public interest.” Id. at 557 (emphasis in original). It considered whether the blog had “primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback.” Id. at 559. Ultimately, the court found that, in the issue before it, the blog in question “qualified for protection under 770.01 because it was an ‘alternative medium of news and public comment.’” Id.

The “dissemination of news” is one element that sets “other media” blogs apart from others. One court distinguished “parties who are not engaged in the dissemination of news and information through the news and broadcast media from those who are so engaged.” Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So. 2d 1376, 1380 (Fla. 4th DCA 1997). But then, of course, who is to say what is “news”? As such, the question is not easy to answer.

A case in Palm Beach County recently delved into whether a particular blog was considered part of the “media” pursuant to section 770.01. Gauger v. Dougan, Case No. 2012CA009540,FLWSUPP 2501GAUG (Fla. 15th Jud. Cir., Palm Beach County, Feb. 10, 2017)).

At issue were two type of defamatory posts. First at issue was a website, PBSOTalk.com, which is no longer active. Its objective was to allow others to post of public records and statements about wasteful law enforcement practices and provide a forum to discuss these issues. Because this primary purpose focused on disseminating information and discussing a matter of public concern, the court found, the website was an “alternative medium of news and public comment,” and therefore qualified as a “medium” under the statute. Accordingly, a presuit notice of defamation was required.

A second type of defamatory statements and images were made on websites besides PBSOTalk.com, including a screen shot of a YouTube video with a defamatory image in the background. Considering that the posts were made by individuals who were not the site owners, he court concluded that the posts on these other websites, like YouTube, were not entitled to protection under section 770.01 because they did not further the same objectives outlined in Comins. Therefore, the court concluded, no notice of defamation was necessary prior to filing suit.

In summary, you never know whether a notice will be required. In an abundance of caution, however, it’s safer to send the notice rather than not, to just avoid having to deal with a defendant raising the argument in the lawsuit.

Have an issue involving defamation?

If you have an issue involving defamation, whether you have been defamed or have been accused of defamation, feel free to contact the Orlando Attorneys of Cynthia Conlin & Associates for a consultation to see how whether our attorneys may be able to help you. You can call us at 407-965-5519.