FORT LAUDERDALE BUSINESS LITIGATION: DEFAMATION BY IMPLICATION

Normally, a defamation claim must be based on one or more false statements. Internet Sols. Corp. v. Marshall, 39 So. 3d 1201 (Fla. 2010) (“The elements of a claim for defamation are as follows: (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.”). However, direct false statements are not always needed to give rise to a defamation claim. This article explores those possibilities. The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

A defamation claim can be based on true statements when those statements create a false impression. Restatement (Second) of Torts § 566 (“A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts.”). This type of defamation is called defamation by implication. See Stevens v. Iowa Newspapers, Inc., 728 N.W. 2d 823 (Iowa 2007) (“Defamation by implication arises, not from what is stated, but from what is implied when a defendant (1) juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts, [such that] he may be held responsible for the defamatory implication”). Defamation by implication is recognized in several jurisdictions including Iowa, New York, and Washinton D.C. Guilford Transp. Indus., Inc. v. Wilner, 760 A. 2d 580 (D.C. 2000) (“[B]ecause the Constitution provides a sanctuary for truth, …. [t]he [defamatory] language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference.” Armstrong v. Simon & Schuster, Inc., 85 N.Y. 2d 373 (N.Y. 1995) (“Defamation by implication is premised not on direct statements but on false suggestions, impressions and implications arising from otherwise truthful statements.”). Florida was a relative late-comer to officially recognizing the tort. Although Florida appellate courts recognized defamation by implication tort since the 1980s, the Supreme Court of Florida did not recognize the tort until 2008. Boyles v. Mid–Fla. Television Corp., 431 So. 2d 627 (Fla. 5th DCA 1983) (reversing dismissal of libel per se claim based on statements that implied that plaintiff was a suspect in the death of the child, was a habitual tormentor of retarded patients, and had raped a patient in his care); Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008) (“We agree with petitioner and its amici that defamation by implication is a well-recognized species of defamation that is subsumed within the tort of defamation.”).

Heekin v. CBS Broad., Inc., 789 So. 2d 355 (Fla. 2d DCA 2001) provides a classic example of defamation by implication. In Heekin, the plaintiff alleged defamation by implication because a news broadcast falsely portrayed him as a spouse abuser by juxtaposing an interview with his former spouse alongside stories and pictures of women who were abused and killed by their spouses. Even though the reporting did not assert the plaintiff was a spouse abuser, the pictures created the false impression that the plaintiff abused his spouse.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.