MIAMI BUSINESS LITIGATION: DEFAMATION OPINIONS

Defamation is a tort that is sometimes asserted in commercial disputes. Litigants asserting defamation must prove “the defendant published a false statement[ ] about the plaintiff[ ] to a third party[ ]  and [that false] statement caused injury to [the plaintiff]” to be successful. Alan v. Wells Fargo Bank, N.A., 604 Fed. App’x 863 (11th Cir. 2015). Defamatory statements fall within one of two categories. The first category is defamation per se. These defamatory statements are so obviously defamatory and damaging to one’s reputation that they give rise to an absolute presumption of malice and damage. Wolfson v. Kirk, 273 So. 2d 774 (Fla. 4th DCA 1973). The second category is defamation per quod. Per quod defamation is not obvious on its face, and, therefore, requires the plaintiff to prove the defamatory statement damaged him or her. Aflalo v. Weiner, 2018 WL 3235529 (S.D. Fla. July 2, 2018). A litigant should advance a defamation per se claim instead of a per quod claim when possible because it is often difficult to prove defamation damages. Consequently, the presumption of defamation damages in a per se lawsuit can enable the defamation claim to survive pre-trial challenges like summary judgment that would otherwise defeat a per quod claim. The Miami 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.

Defamation claims must be based on factual statements. Dershowitz v. Cable News Network, Inc., 668 F. Supp. 3d 1278 (S.D. Fla. 2023) (“A claim of defamation also requires a false statement of fact.”). Consequently, opinion statements are not actionable. Zambrano v. Devanesan, 484 So. 2d 603 (Fla. 4th DCA 1986). However, it is not always easy to distinguish factual statements from opinion statements because a statement could contain a mix of fact and opinion. LRX, Inc. v. Horizon Assocs. Joint Venture ex rel. Horizon-ANF, Inc., 842 So. 2d 881 (Fla. 4th DCA 2003). (“A mixed opinion is one based upon facts regarding a person or his conduct that are neither stated in the publication nor assumed to exist by a party exposed to the communication.”).  

Courts decide whether the statement giving rise to a defamation lawsuit is a statement of fact or opinion because it is a question of law. Turner v. Wells, 879 F.3d 1254 (11th Cir. 2018). “In assessing whether an allegedly [defamatory] statement is opinion, the court must construe the statement in its totality, examining not merely a particular phrase or sentence, but all of the words used in the publication.” Rasmussen v. Collier County Pub. Co., 946 So. 2d 567 (Fla. 2d DCA 2006). One cannot simply couch a factual statement as opinion to transform an otherwise factual statement into an opinion statement. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). Courts have held that “[e]ven if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.” For example, in Anson v. Paxson Communications Corp., 736 So. 2d 1209 (Fla. 4th DCA 1999), the court determined the defendant could not shield himself from liability by simply labeling the actionable statements as an opinion.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.