Free Speech Doesn’t Protect Defamatory Statements

Unhappy consumers take to the Internet and social media all the time. It’s commonplace today for a person irritated by a flight delay to post on Twitter, or someone that received poor service in a restaurant to leave a damning review on a consumer based website. But, what happens when the complaint lodged against the service provider isn’t true? The answer is that you get sued, and the First Amendment won’t protect you.

In a recent case coming out of the District Court of Appeal for Florida, a lawyer was awarded damages after she was subject to libel and defamation online. Ann-Marie Giustibelli represented Copia Blake in her divorce proceedings against Peter Birzon. However, the tables were eventually turned when Blake fired Giustibelli and took to the Internet with her ex-husband Birzon to spew defamatory comments regarding Giustibelli’s services. The posts made claims of excess charges and that Giustibelli drew the proceedings out to get paid more.

Unsurprisingly, Giustibelli sued, and she won. During the trial, Blake and Birzon admitted that many of their comments were false, but suggested that because their statements were opinion, the First Amendment protection of free speech safeguarded them against prosecution. The court disagreed.

Despite agreeing with the lower court decision, the Court of Appeal wrote a decision suggesting that the issue “presents a scenario that will likely recur, and the public will benefit from an opinion on the matter.” The court held that the blog’s claims that Giustibelli falsified the contract between herself and Blake were actually factual allegations, and that the evidence proved that these claims were false.

The court didn’t address any of Blake and Birzon’s other arguments, finding that they had not been adequately briefed, weren’t preserved, or lacked in merit.

In this instance, Giustibelli was fortunate because she knew who was posting the comments online. Not everyone is so fortunate. Given the power of technology and the ability of an individual to post comments online without disclosing their identity, this can be a major challenge. For more information on how to proceed when you don’t know who is posting defamatory comments about you or your business, look at “Internet Defamation: Who Do I Sue if I Don’t Know Who Defamed?”

For more information about what options are available to and what can be done to have defamatory comments removed from Internet service providers, contact Revision Legal’s Internet Defamation attorneys through the form on this page or call 855-473-8474.

Image courtesy of flickr user brett jordan.

Opinion Versus Fact: The Core Defamation Distinction

The Giustibelli case illustrates the central question in online defamation: when does a statement cross from protected opinion to actionable defamation? The First Amendment protects opinions, but not every statement prefaced with “in my opinion” is immunized. The test, established by the Supreme Court in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), asks whether a reasonable person could understand the statement as asserting an objectively verifiable fact. If the answer is yes, the statement can be defamatory regardless of how it is framed.

In Giustibelli, the defendants argued that their blog posts were opinion. The court disagreed because the posts made specific factual assertions — that Giustibelli had falsified a contract and padded her billing. These are not statements of feeling or preference; they are assertions that a specific, verifiable event either occurred or did not. That the poster framed the assertion as a belief or characterized it as her “experience” did not convert the factual assertion into protected opinion. The court found that the evidence proved the assertions were false, and defamation liability followed.

The Elements of Defamation and How They Apply Online

Defamation — which encompasses both libel (written) and slander (spoken) — requires four elements under traditional common law: (1) a false statement of fact; (2) publication to at least one third party; (3) the applicable level of fault; and (4) damages. In the context of online reviews and social media posts, each element has specific implications:

• False statement of fact. The statement must be objectively false, not merely unflattering or disputed. True statements, however damaging, cannot be defamatory. Substantially true statements are treated the same as true statements — a defendant who gets most of the facts right but distorts a minor detail has a strong substantial truth defense.
• Publication. Online posts satisfy the publication requirement the moment they are visible to any third party. Every person who can read the post is a separate instance of publication. Republication — sharing or retweeting a defamatory post — may create independent liability for the person who republishes, not just the original poster.
• Fault. Private individuals, like the attorney in Giustibelli, need only prove negligence — that the defendant failed to exercise reasonable care to verify the truth of the statement. Public figures and public officials face a much higher burden: they must prove actual malice, meaning the defendant knew the statement was false or acted with reckless disregard for its truth or falsity. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The distinction between public and private figure status is critical to evaluating the viability of a defamation claim.
• Damages. Most states presume damages for written defamation (libel) per se — statements that are defamatory on their face, such as accusations of criminal conduct, professional misconduct, or sexual immorality. For libel per quod — statements defamatory only in context — the plaintiff must plead and prove special damages.

Florida’s Defamation Law and the Giustibelli Decision

Florida defamation law tracks the general common law framework but has several specific features relevant to online claims. Florida recognizes defamation per se for four categories of statements: accusations of a crime, statements that injure a person in their profession or trade, statements that the person has a loathsome disease, and statements about sexual conduct. Professional misconduct accusations — such as the claim that an attorney falsified a contract — fall squarely within the second category and are actionable without proof of specific economic damages.

Florida also has an anti-SLAPP statute, Fla. Stat. § 768.295, that protects individuals who make statements in connection with public issues. The statute allows defendants to seek attorney’s fees against plaintiffs who file defamation suits intended to suppress free speech on matters of public concern. In Giustibelli, the defendants did not prevail on an anti-SLAPP theory because the statements — about a private legal dispute between an attorney and her former client — did not qualify as matters of public concern. The anti-SLAPP analysis would be different for a review criticizing a business’s general practices rather than making specific false factual claims about its operator.

Damages and Remedies Available to Defamation Plaintiffs

A successful defamation plaintiff can recover: (1) compensatory damages for actual harm to reputation, emotional distress, and lost business; (2) presumed damages in per se cases without specific proof of economic harm; (3) punitive damages where the defendant’s conduct was especially egregious or motivated by actual malice; and (4) injunctive relief ordering the defendant to remove or correct the defamatory content. Attorney’s fees are not automatically awarded in defamation cases, but courts may award them in jurisdictions that allow fee-shifting as part of injunctive relief.

In the online context, the duration and reach of defamatory content amplifies damages. A defamatory post that appears in search results for a professional’s name can suppress new business for months or years, and the damages calculation should account for this ongoing harm rather than treating the post as a single event.

If you have been the subject of false statements online — whether in a review, a social media post, a blog, or a news article — and you need to evaluate whether you have a viable defamation claim, Revision Legal’s defamation attorneys can help. Contact us through the form on this page or call 855-473-8474.