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The Internet allows a free flow of information that sometimes is defamatory and with intent to harm persons and businesses.  Sometimes the party posting defamatory content is located in a state or place outside Florida, but a Florida person or business suffers harm in Florida.  Florida businesses have sometimes sued for defamation, and the defendant has asserted as a defense that the Florida court does not have “personal jurisdiction” over the defendant.  Florida and federal courts have addressed this recurring issue in a series of cases.  Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents 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.
Florida’s Fourth District Court of Appeal in Astro Aluminium Treating Co., Inc. v. Inter Contal, Inc., 296 So.3d 464 (Fla. 4th DCA 2020), explained the two-step inquiry to determine whether a Florida court can exercise personal jurisdiction over a nonresident defendant: (1) whether the complaint alleges sufficient facts to support the exercise of jurisdiction under the long-arm statute (i.e., the Florida statute that governs jurisdiction over a non-Florida residents concerning alleged harms to Florida residents); and (2) whether the defendant has sufficient minimum contacts with the state to satisfy due process requirements. The Inter Contal decision relied heavily on precedent from the Supreme Court of Florida in Venetan Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989), explaining the legal analysis frequently used by Florida courts. Florida’s long-arm statute, section 48.192(1)(a)(2), Florida Statutes, states that a person who commits a tortious act within the State of Florida, whether or not he is a citizen or resident of the state, submits himself to the jurisdiction of the state’s courts for any cause of action arising from that act.  Applying this subsection, the Florida Supreme Court in Internet Sols. Corp. v. Marshall, 39 So.3d 1201 (Fla. 2010), held that a nonresident who posts defamatory material about a Florida resident on a website accessible in Florida commits a tortious act within the state, and therefore submits himself to the jurisdiction of the state’s courts, once the material is accessed in Florida. The Internet Sols. Corp. decision stated in pertinent part:
[A]llegedly defamatory material about a Florida resident placed on the Web and accessible in Florida constitutes an “electronic communication into Florida” when the material is accessed (or “published”) in Florida. In the context of the World Wide Web, given its pervasiveness, an alleged tortfeasor who posts allegedly defamatory material on a website has intentionally made the material almost instantly available everywhere the material is accessible. By posting allegedly defamatory material on the Web about a Florida resident, the poster has directed the communication about a Florida resident to readers worldwide, including potential readers within Florida. When the posting is then accessed by a third party in Florida, the material has been “published” in Florida and the poster has communicated the material “into” Florida, thereby committing the tortious act of defamation within Florida. This interpretation is consistent with the approach taken regarding other forms of communication.
Thus, tortious conduct committed out-of-state is considered to have occurred “within this state” for the purposes of applying the long-arm statute where it involves posting material online about a Florida resident that is in fact accessed in Florida.
In business litigation over claims asserting defamation against a business, defendants often try to avoid a long-arm jurisdiction by asserting there is no valid defamation claim because some of the statements are technically true.  Florida courts often consider it a factual question whether statements are defamatory even if some of them are technically true.  For example, the Florida Supreme Court’s decision Jews for Jesus, Inc. v. Rapp., 997 So.2d 1098 (Fla 2008), recognized a cause of action for “defamation by implication” where “literally true statements are conveyed in such a way as to create a false impression.”  Under Florida law, “truth is only a defense to defamation when the truth has been coupled with good motive” and both truth and good motives are issues for the jury. Lipsig. v. Ramlawi, 760 So.2d 170 (Fla. 3d DCA 2000).  In this vein, Florida’s Fourth District Court of Appeal in LRX, Inc. v. Horizon Assocs. Joint Venture, 842 So. 881 (Fla. 4th DCA 2003), reversed a trial court order directing a verdict for the defendant on a claim for libel because, even if the defendant’s statements about the plaintiff were true, it was a question of fact whether the defendant implied knowledge of additional defamatory facts as to whether the defendant had an improper motive in publishing the statements.
Under the United States Constitution, defendants have a right to due process that the United States Supreme Court has interpreted to require “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”  Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945).  The defendant’s conduct and connection with the forum state must be such that “he should reasonably anticipate being haled into court there.”  World-Wide Voldkswagen Corp. v. Woodson, 444 U.S. 286 (1980).  In intentional tort cases such as lawsuits alleging defamation, minimum contacts can be established based on a single tortious act, regardless of whether the defendant has any other contacts with the forum state, if the tortious act was aimed at the forum state and caused harm that the defendant should have anticipated would be suffered there.  Walden v. Fiore, 571 U.S. 277 (2014) (explaining that a state can exercise jurisdiction over a nonresident intentional tortfeasor if his conduct connects him not only to the plaintiff but to the forum state). The Supreme Court’s decisions in Warden v. Fiori and its earlier decision in Calder v. Jones, 465 U.S. 783 (1984), established important precedent with the “effects test,” namely that reputation-based “effects” of alleged libel can connect defendant to a particular state for purposes of due process, not just to the plaintiff.  Defendants who post out-of-state internet pots that have “reputation-based effects” from those statements within the State of Florida can be sued in Florida for defamation.   As in Calder, a non-Florida defendant’s intentional conduct expressly aimed at residents of this state and causing reputational harm in Florida can, in the view of Florida and federal courts, connect the defendant to Florida and constitute sufficient minimum contacts to support the exercise of personal jurisdiction.  Federal case law is in alignment with the Supreme Court of Florida’s decision in Internet Sols. Corp., explaining that the due process analysis in an internet defamation case may appropriately include consideration of whether the defendant’s allegedly defamatory website post “targeted” a Florida resident and was “purposefully directed” at Florida.
Peter Mavrick is a Miami business litigation lawyer, and represents 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.
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