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Defamation by Facebook Post in the Orlando, Florida Area

There was an interesting case in Florida Law Weekly this week on defamation in social media posts. The case appeared in 46 Fla. L. Weekly D1337 (Fla. 4th DCA, June 2021). The article discussed a tort of defamation case regarding libel per se in a social media post, as well as where the libel occurred and where the proper venue was for the case to be filed. 

How the Court Ruled

The court ruled that a Facebook post cannot be libelous until it is published and accessed, then stated that a posting placed on a public Facebook page is instantaneously accessible throughout Florida. The issue of the case was whether, for purposes of venue under section 47.011, Florida Statutes (2019), a cause of action for libel per se accrued in any county in which an allegedly libelous Facebook post originated, or in any county where the post was accessed and read by a third party. 

The court held that:

1. A Facebook post cannot be libelous until it is published and accessed;
2. A posting placed on a public Facebook page is instantaneously accessible throughout Florida; and
3. Appellee Shane McBee’s (Plaintiff) complaint sufficiently avers that that the post at issue was accessed in Palm Beach County. The District Court affirmed the Trial Court’s denial of the motion to transfer venue from Palm Beach County. 

Determining Libel

The court stated that the instant case turned entirely on the determination of where the cause of action for libel per se involving an electronic communication accessible by the public accrued. In general, a tort claim accrues for venue purposes where the last event necessary to make the defendant liable for the tort took place, or where the harmful effect of the defendant’s acts first happened. Stated another way, a tort is accrued where the plaintiff first suffers injury. Under Florida law, a cause of action for defamation toward a private individual requires five elements:

1. Publication
2. Falsity
3. That the alleged tortfeasor acted at least negligently on a matter concerning the private individual;
4. Actual damages; and 
5. A defamatory statement. 

Libel, in turn, is a subcategory of defamation, defined as the unprivileged written publication of a false and defamatory statement. 

The District Court ruled that it was clear that the instant tort claims for libel accrued in the county where the libelous statement was published, as publication would be the last event necessary to make a defendant liable for a claim of libel or defamation, and a plaintiff does not suffer injury until a libelous statement is published. But in the instant case, both Defendant and Plaintiff disagree as to where publication of Defendant’s purportedly libelous Facebook post occurred. 

The Conclusion

The District Court concluded that a tort claim accrues for venue purposes where the last event necessary to make the defendant liable for tort took place, or where the harmful effect of the defendant’s acts first took effect. Stated another way, a tort occurs where the plaintiff first suffers injury. Here, there was no injury to Plaintiff until the allegedly defamatory Facebook post was published and accessed (received and read). 

If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. 

This article is for informational purposes only and does not form an attorney client privilege.