1. Introduction

    If a sexual photo or video is published online, it may be accompanied by defamatory statements about the victim. However, it seems less likely that the statements would be oral than written statements (libel), e.g., comments accompanying the photo/video may state that the victim is infected with a sexually transmitted disease, is seeking sex in exchange for money, or has had abortions.

  2. Elements

    1) Publication;

    2) Falsity;

    3) Actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person;

    4) Actual damages; and

    5) Statement must be defamatory.1

  3. Cases

    1. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008)

      • Procedural Posture: Stepmother of employee of plaintiff religious organization sued the defendant organization following publication of article in newsletter and on website stating that stepmother (who was Jewish), had accepted Christian beliefs. Jews for Jesus petitioned for review of lower court’s decision certifying a question, affirming in part and reversing/remanding in part.

      • Law: Defamation; False light invasion of privacy; Intentional infliction of emotional distress; Negligent training and supervision

      • Facts: Employee of Jews for Jesus published statements that his Jewish stepmother had joined Jews for Jesus when his father died. She explained that her friends and family members read the untrue statements online, and she sued for relief for emotional distress and other common law claims.

      • Outcome: The Florida Supreme Court held that it recognizes a cause of action for defamation by implication, but it expressly chose not to recognize a claim for false light invasion of privacy. The court also noted that a communication can be considered defamatory if it prejudices the plaintiff in the eyes of a substantial and respectable minority of the community. The court explained that defamation already recognized the concepts at issue under false light invasion of privacy claims, and there was “no meaningful distinction” between the two to justify recognizing “false light” as a separate tort.2

      • Special Notes: The court specifically noted that First Amendment rights would be negatively affected by recognizing a false light tort because the “highly offensive to a reasonable person” standard employed is so vague and unclear.3

    2. Cape Publ’n, Inc. v. Reakes, 840 So. 2d 277 (Fla. Dist. Ct. App. 2003)

      • Procedural Posture: Defendants appealed from jury verdict for former newspaper reporter in defamation claim against his former employer when the newspaper fired him for allegedly trespassing on property. The jury ruled in plaintiff’s favor, awarding substantial damages.

      • Law: Defamation; Conversion

      • Facts: Plaintiff was conducting a murder investigation, and he and a partner went to the alleged murderer’s house for background investigation material. When the reporters arrived at the house, they saw that it had already been ransacked, and they took a list of phone numbers off of the floor. They were later fired for “trespassing.” The incident received national attention, and there were articles published about the reporters “stealing” the phone numbers. After plaintiff and his partner were terminated, plaintiff sued the defendant newspaper, the newspaper editor, and an officer of the newspaper for damages arising from the incident. The plaintiff claimed that he could not find employment following the incident because of the defamatory statements the newspaper had published about him.

      • Outcome: The court affirmed in part and reversed in part, affirming $10,000 conversion claim, but reversing as to plaintiff’s defamation claims because the statements made were “true statements” made against plaintiff, and were not made maliciously. Moreover, the plaintiff failed to show that the statements proximately caused her damages. The court explained, “if the statements made by [defendants] were substantially true, the defamation verdicts are reversible,” and the damages appeared to arise as a result of plaintiff’s firing, not defendants’ allegedly “defamatory” statements.4

    3. Coton v. Televised Visual X-Ography, Inc., 740 F. Supp. 2d 1299 (M.D. Fla. 2010)

      • Procedural Posture: Following entry of default judgment for plaintiff against the company, the plaintiff moved for a default final judgment of liability

      • Law: Defamation by implication; Copyright Infringement; Fla. Stat. § 540.08; Invasion of Privacy (misappropriation); Intentional infliction of emotional distress

      • Facts: Plaintiff, an amateur photographer, sued defendants for damages arising from company’s unauthorized use of her self-portrait from age 14 on packaging of a pornographic movie. The company claimed they took the photo from an authorized website. The plaintiff and the defendant company engaged in several heated email exchanges after which the company discontinued the use of the photograph, but plaintiff claims that she was entitled to damages including a lost licensing fee, the company’s profits, and punitive damages arising from the emotional distress the incident caused.

      • Outcome: The court granted plaintiff’s motion for a default final judgment of liability against the company and awarded plaintiff damages of $129,173.20 with interest for her damages. The amount was based on her copyright infringement fees, disgorgement of defendant’s profits, harm to her professional reputation, and her statutory misappropriation claim. The court denied her request for punitive damages because she failed to show that the defendant had acted willfully, and it also denied her request for emotional distress damages because it found that she failed to put forth a claim of IIED where there was no evidence that the defendants had knowingly acted “outrageously”: “[T]he defendants’ conduct, in its totality, was morally wrong and tortious. However, the misconduct still does not ‘go beyond all bounds of decency and . . . [cause] an average member of the community . . . to exclaim, ‘Outrageous.’”5

      • Special Notes: The court awarded plaintiff $100,000 based specifically on the harm caused to her professional reputation, since she alleged that the video had caused her to lose potential jobs, etc.

  4. Practice Pointers

    In addition to being immune through a common law privilege, the Communications Decency Act also may provide an ISP with immunity from a defamation claim. Section 230 of the Communications Decency Act of 1996, is a landmark piece of Internet legislation, which provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others.6

    To be immune under the CDA, a defendant must satisfy each of the following prongs: (1) the defendant must be a “provider or user” of an “interactive computer service”; (2) the cause of action asserted by the plaintiff must “treat” the defendant “as the publisher or speaker” of the harmful information at issue; and (3) the information must be “provided by another information content provider,” i.e., the defendant must not be the “information content provider” of the harmful information at issue.

    Section 230 is controversial because several courts have interpreted the Act as providing complete immunity for ISPs with regard to the torts committed by their users over their systems. This rule effectively protects online entities, including user-generated content websites that qualify as a “provider or user” of an “interactive computer service.” Although the Florida Supreme Court has adopted this view,7 the Eleventh Circuit has not weighed in.8

    However, defendant websites are not immune from intellectual property claims or federal criminal liability. There is a split of authority on whether defendant websites are vulnerable to state intellectual property claims in addition to federal intellectual property claims. If this note is of interest to you, you should consider conducting additional research on whether the Florida right of publicity claim (a state intellectual property claim) is barred by Section 230, or not.

    Moreover, defendant websites forfeit all immunity – not just from intellectual property claims or criminal liability – when they become the information content providers. What conduct qualifies a website as a “content provider” is a legal gray area, and the subject of much litigation.

  1. Id. 

  2. Id. at 1108. 

  3. Id. at 1111. 

  4. Cape Publ’n, Inc. v. Reakes, 840 So. 2d 277, 280-81 (Fla. Dist. Ct. App. 2003). 

  5. Coton v. Televised Visual X-Zoography, Inc., 740 F. Supp. 2d 1299, 1316 (M.D. Fla. 2010). 

  6. 47 U.S.C. § 230. 

  7. See Doe v. Am. Online, Inc., 783 So. 2d 1010, 1018 (Fla. 2001) (finding that the CDA preempted mother’s suit against AOL for negligence arising from the distribution of pornographic photographs of her son in AOL chat rooms). 

  8. Almeida, 456 F.3d at 1324 (finding it unnecessary to decide the preemption issue).