A Florida Appellate Court decided today that the Trial Court properly awarded an attorney damages in libel action against defendant who posted derogatory reviews of attorney on internet. In doing so, the appellate Court decided that the Internet based reviews containing false information did not constitute statements of opinion which were protected by First Amendment and not actionable as defamation. In other words, the lawyer could proceed as Defamation per se still exists in Florida in cases not involving media defendants.
The facts showed, that after a non-jury trial, the trial court awarded the attorney damages in this libel and breach of contract case. One issue the Defendants raised on appeal involved the application of free speech protections to reviews of professional services posted on the internet. The attorney represented one of the Defendants in a divorce proceeding. After a breakdown in the attorney-client relationship the parties divorcing took to the internet to post defamatory reviews of the attorney representing one of the parties. In response, the attorney brought suit, pleading a count for libel.
The posted internet reviews contained the following statements:
This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, [name of attorney] is simply not one of the “good ones[.]” Horrible horrible experience. Use anyone else, it would have to be a better result.
No integrity. Will say one thing and do another. Her fees outweigh the truth. Altered her charges to 4 times the original quote with no explanation. Do not use her. Don’t mistake sincerity for honesty. In her case, they’re not at all the same. Will literally lie to your face if it means more money for her. Get someone else. . . . Anyone else would do a superior effort for you.
I accepted an initial VERY fair offer from my ex. [Attorney’s name] convinced me to “crush” him and that I could have permanent etc. Spent over a year (and 4 times her original estimate) to arrive at the same place we started at. Caused unnecessary chaos and fear with my kids, convinced me that my ex cheated (which he didn’t), that he was hiding money (which he wasn’t), and was mad at ME when I realized her fee circus had gone on long enough and finally said “stop[.]” Altered her fee structures, actually replaced original documents with others to support her charges and generally gave the kind of poor service you only hear about. I’m not a disgruntled ex-wife. I’m just the foolish person who believes that a person’s word should be backed by integrity. Not even remotely true in this case. I’ve had 2 prior attorneys and never ever have I seen ego and monies be so blatantly out of control.
Both Defendants admitted to posting the reviews on various internet sites. The court entered judgment in favor of the attorney and awarded punitive damages of $350,000.
On appeal, the Defendants argued that their internet reviews constituted statements of opinion and thus were protected by the First Amendment and not actionable as defamation. The Appellate Court disagreed stating “[A]n action for libel will lie for a ‘false and unprivileged publication by letter, or otherwise, which exposes a person to distrust, hatred, contempt, ridicule or obloquy or which causes such person to be avoided, or which has a tendency to injure such person in [their] office, occupation, business or employment.’ ” LRX, Inc. v. Horizon Assoc. Joint Venture ex rel. Horizon ANF, Inc., 842 So. 2d 881, 885 (Fla. 4th DCA 2003) (quoting Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 803 (Fla. 1st DCA 1997)).1
Here, all the reviews contained allegations that the lawyer lied to one of the Defendants regarding the attorney’s fee. Two of the reviews contained the allegation that the lawyer falsified a contract. These were factual allegations, and the evidence showed they were false.
As part of their “free speech” claim, the Defendants argued that the judgment references defamation “per se.” They argue that libel per se no longer exists as a legal concept after the decision by the United States Supreme Court in Gertz, 418 U.S. 323 (1974). “[A] publication is libelous per se, or actionable per se, if, when considered alone without innuendo: (1) it charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his trade or profession.” Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953); see also Shafran v. Parrish, 787 So. 2d 177, 179 (Fla. 2d DCA 2001) (“When a statement charges a person with committing a crime, the statement is considered defamatory per se.” (citation omitted)). InGertz, the Court held that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Gertz, 418 U.S. at 347. After Gertz, the Florida Supreme Court recognized that, with respect to a libel action against the media, it is no longer accurate to say that ” ‘[w]ords amounting to a libel per se necessarily import damage and malice in legal contemplation, so these elements need not be pleaded or proved, as they are conclusively presumed as a matter of law.’ ” Mid-Fla. Television Corp. v. Boyles, 467 So. 2d 282, 283 (Fla. 1985) (quoting Layne v. Tribune Co., 146 So. 234 (1933)). Thus, after Gertz, in libel cases involving media defendants, fault and proof of damages must always be established.
The distinction is that the case decided today did not involve a media defendant. As such, Libel per se otherwise still exists in Florida.
The moral of the story make sure you do not post statements in online reviews, Facebook posts, Tweets, etc. which contain blatantly false statements about a person or their practices, or business. These are not opinions when they contain clear false statements and the person being posted about is not a “public figure or media figure.