What is Defamation Per Se, Slander Per Se & Libel Per Se?

Our nation prizes the ability of citizens to criticize not only each other, but also government officials and public figures. But this doesn’t mean that you can make false statements in public about others. In that case, the First Amendment gives way to defamation and defamation per se.

What is Defamation Per Se?

What constitutes defamation in Florida? Under Florida law, defamation per se is a statement that is so damaging that the law presumes its defamatory meaning per se, or “on its face.” When the plaintiff proves their defamation per se case, the court presumes damages.

The law recognizes the following four categories as defamatory statements per se, or automatically:

1. Stating that someone is involved in a crime of moral turpitude.
2. Stating that someone has a contagious, infectious, or loathsome disease.
3. Stating that someone is unchaste or engaged in sexual activity.
4. Stating that someone is involved in a behavior that is incompatible with the proper conduct of their business, trade, or profession.

As a category, defamation also includes the torts of defamation by implication, libel and slander.

Defamation by Implication

Another type of defamation is defamation per quod, or defamation by implication in Florida. With defamation per quod, the allegedly defamatory statement is not on its face harmful. Instead, the damages become apparent when the statement is placed in context based on extrinsic facts.

The plaintiff must prove actual damages. That is, that they suffered some kind of reputational injury because of the statement. The plaintiff could also be a business, where the defendant’s statement has caused business defamation.

For example, imagine there were an auto accident between a red car and a white car. You were a passenger on the sidewalk who witnessed the crash. But for some reason, the insurance company of the driver in the white car has argued that you were driving the red car. This statement would be defamation per quod.

What is Slander Per Se?

Slander, on the other hand, is a defamatory statement spoken aloud. However, opinion isn’t enough to trigger defamation laws. With both libel and slander, the defendant must make a statement of fact that is a defamatory statement.

Sometimes, though, an opinion implies a defamatory fact about the plaintiff’s reputation. In that case, some jurisdictions will find the statement to be defamatory.

Defamation laws, however, consider slander to be a less harmful type of defamation because of its impermanent nature. Many jurisdictions do not consider slander to be per se actionable. But this is not the case in Florida. Like defamation per se, the slander per se definition includes statements involving sexual misconduct or abuse and crimes of moral turpitude.

Slander Per Se Elements

Like defamation per se generally, a statement is slanderous per se when the statement is (1) spoken out loud and (2) a statement that is so offensive on its face that the law presumes its slanderous nature—just like the four categories listed above for defamation per se.

Slander Per Se Example

A statement is slanderous when it’s uttered aloud. Imagine a situation where Barb and Jess are at their midday lunch break. The two are having lunch seated on an outdoor patio along a bustling city square in a small town. Numerous other patrons are also enjoying their lunches, with passersby walking along the sidewalk and restaurant staff maneuvering the patio.

Barb says to Jess, “Did you know that Kelly cheated on her husband last week while on vacation?” While walking down the sidewalk, Kelly’s friend Sam hears this statement. So do other passersby and restaurant-goers. Sam then repeats this story to numerous other people in town. Barb has now slandered Kelly.

What is Libel Per Se?

On the other hand, a libel per se definition is the same as defamation per se. The statement must be so egregious on its face that the plaintiff does not need to prove damages.

For a defamatory statement to be considered libelous, it must be communicated in a fixed medium, such as in a writing or recording. The writing or recording could be transitory. For example, spray-painting a defamatory statement on the side of a building or recording a self-deleting voice memo would still be libelous. As long as the statements are recorded or written falsehoods that damage another’s reputation, they are libelous.

Libel Per Se Elements

For a statement to be libelous per se, it must fit one of the four categories above like a defamation per se claim. However, the statement must also be communicated in a fixed medium.

Libel Per Se Example

Like the defamation per se categories listed above, libel per se occurs in the following examples:

• Writing in a text message that your friend, who is an accountant, embezzled money from a client
• Writing on a social media page that your neighbor assaulted their elderly grandmother

Defamation Per Se Damages

When a plaintiff proves their per se defamation case, the court presumes injury to their reputation as a matter of law.

1. General Damages

General damages provide compensation for either the past or future harm perpetrated against the person’s reputation in their community. These damages also account for the personal injury to their mental or emotional being.

2. Special Damages

As compared with general damages, a court may award special damages when a plaintiff proves that they suffered a specific economic loss. The plaintiff needs to prove that they lost profits, lost a job, or lost an opportunity because of the reputational damage they suffered.

3. Nominal Damages

Sometimes, a defamation case causes no serious harm to a person’s reputation. Nonetheless, the statement can still be defamatory per se. In that case, the court awards a nominal amount (i.e., $1) to recognize that the defendant was wrong.

4. Punitive Damages or Exemplary Damages

In other cases, the defamatory statement made by the defendant is so egregious that additional money is warranted. The court will grant exemplary or punitive damages to punish the defendant or set an example. Punitives may also be assessed for a business defamation case. For punitive damages, Florida courts require the amount to be reasonable.

Need Help with a Florida Defamation Per Se Case?

Pursuing a defamation claim can be emotional and time-consuming. If you have a Florida defamation complaint, a Florida defamation attorney from Cueto Law Group can help you file your claim and seek damages.

Contact us today to pursue a claim of defamation per se in Florida.

Key Takeaways on Per Se Defamation

Under the defamation law in Florida, a plaintiff can prove defamation per se when the statement is so egregious that a court would find it offensive on its face. A defamatory statement is libelous when written in a fixed medium and slanderous when spoken aloud. If defamatory per se, a court automatically imputes liability on the defendant.

FAQs