By Marc J. Randazza
It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements. But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01.
Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:
770.01 Notice condition precedent to action or prosecution for libel or slander.
Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory
The plaintiff took the position that the words “other medium” did not apply to blogs. The defense argued that the language “or other medium” includes blogs. The court agreed with the defense.
The court’s opinion is available here. Under its reasoning, § 770.01 applies to bloggers and, since its requirements were not met when filing suit against VanVoorhis, the Defendant wins on Summary Judgment.
Those of you who understand the legal process might ask why this was a summary judgment motion instead of a motion to dismiss. The Defendant did file a motion to dismiss, but at the hearing on the motion to dismiss, the judge seemed inclined to rule in the defendant’s favor. (See Transcript at 7:25-8:1. At that point, the plaintiff’s attorney told the judge that they had sent the 770.01 notice, but that they had merely neglected to allege it in their complaint. (See Transcript at 8:2-14). That statement was unsupported by any facts. Nevertheless, since the plaintiff was given the right to file an amended complaint alleging that they had served the proper notice, it required factual development in the case to disprove that claim.
This case is only a trial level case, but it is an important lesson for Florida defamation defense counsel. Do not neglect the importance of Fla. Stat. 770.01. Most SLAPP plaintiffs will not send one, and if they do, they will frequently get it wrong.
As Mr. VanVoorhis is a client of Randazza Legal Group, and his counterclaim for abuse of process is ongoing, I decline to say more at this time. This is, however, a bright day for free speech in the sunshine state.
