GRIFFIN, J.
In this defamation case, Christopher Comins ["Comins"], appeals a trial court order entering partial final judgment in favor of Appellee/Cross-Appellant, Matthew VanVoorhis ["VanVoorhis"], for Comins's failure to comply with the presuit notice requirement of section 770.01, Florida Statutes (2008). Comins argues that the trial court erred because VanVoorhis is not a "media defendant" and thus is not entitled to presuit notice. Alternatively, Comins contends that, even if VanVoorhis had been entitled to presuit notice, VanVoorhis
This case arises out of a May 19, 2008 incident that involved Comins. According to various reports prepared by the Orange County Sheriff's Office, at around 4:30 p.m., people began to notify authorities that two wolves or dogs were in a pasture with cattle located near the intersection of State Road 417 and Narcoosee Road. Over the next two hours, the Orange County Sheriff's Office Communications Center received multiple calls. Some witnesses believed, at first, that the dogs were wolves; other witnesses stated that they knew the dogs were domestic animals because the dogs had collars. Witnesses reported observing the dogs circling and cornering the cattle, including a young calf. Some witnesses believed the dogs were just playing; others thought the dogs were acting in an aggressive manner. Eventually, reports came in that a man had shot the dogs. Twenty people were listed as witnesses to the shooting.
Comins, who is friends with the landowner, was driving past the pasture as these events were unfolding, and called to alert the landowner of the situation. According to Comins and the landowner, the landowner told Comins that animals attacking the cattle should be shot. Comins said he went into the pasture, was confronted by the dogs, felt threatened, and shot at the dogs six times. The following narrative was prepared by the Orange County Sheriff's Office in their investigative findings:
Local news outlets, such as the Orlando Sentinel, WKMG Local 6, WESH Channel 2, and WFTV Channel 9, reported on the incident. Then, in early June 2008, a witness to the incident, who had caught the shooting on camera, posted the video of the shooting onto YouTube. Throughout the summer, the incident continued to be
VanVoorhis learned about the incident from a Facebook group that had been created to express outrage over the incident. At this time, VanVoorhis had a bachelor's degree in sociology from Indiana University, a master's degree in sociology from the University of Florida, and was working towards his doctoral degree in sociology at the University of Florida. Since 2007, VanVoorhis had maintained a blog, entitled "Public Intellectual," using the online blog platform, WordPress.
Sometime in early 2009, Comins became aware of VanVoorhis's blog posts. Comins traced the blog posts to the University of Florida's computer network and, subsequently, through counsel, sent a letter [the "Killgore letter"] to "M. Frederick Voorhees" c/o the University of Florida on March 23, 2009. In this letter, Comins's attorney, Frank H. Killgore, Jr. ["Attorney Killgore"], expressed concern over several death threats that individuals had made in the blog's comments section and over the fact that Comins's personal and business contact information had been posted in the comments section. Attorney Killgore requested that VanVoorhis delete the blog in its entirety or, at least, remove the death threats and all references to Comins's contact information.
Eventually, Comins obtained VanVoorhis's full legal name and address. On May 13, 2009, Comins filed a four-count complaint against VanVoorhis for libel (Count I), libel per se (Count II), defamation by implication (Count III), and tortious interference with a business relationship (Count IV). Thereafter, VanVoorhis filed a counterclaim against Comins for abuse of process and filed an answer and asserted eleven affirmative defenses to Comins's complaint. At issue here is VanVoorhis's fifth affirmative defense that Comins failed to comply with the presuit notice requirement of section 770.01 before
§ 770.01, Fla. Stat. (2008). VanVoorhis also filed a motion to dismiss the lawsuit on this same basis. On September 10, 2010, the trial court held a hearing on the motion to dismiss. Comins's counsel, Christopher M. Harne ["Attorney Harne"], told the trial court that presuit notice had been sent. Based on this representation, the trial court granted VanVoorhis's motion to dismiss, but gave Comins leave to amend his complaint to properly plead compliance with the presuit notice requirement.
Comins's first amended complaint alleged that "Plaintiff complied with Fla. Stat. § 770.01 in an abundance of caution by serving notice in writing on Defendant care of the University of Florida on March 23, 2009, identifying the articles which Plaintiff alleges to be false and defamatory." Later, Comins filed a second amended complaint, which amended the presuit notice allegation to read:
On March 1, 2011, VanVoorhis filed a motion for summary judgment on the presuit notice issue. The trial court held a hearing on VanVoorhis's motion for summary judgment and ruled in favor of VanVoorhis based on Comins's failure to comply with the presuit notice requirement of section 770.01. The trial court said that "[t]he issue, then, is whether or a[sic] not Defendant's blog falls under the rubric of `other medium' as used in section 770.01." Finding that "other medium" does include the internet, the trial court held that Comins was required to give VanVoorhis presuit notice under section 770.01. The trial court also rejected Comins's waiver argument as having no factual or legal basis. We agree.
On appeal, Comins argues that the trial court erred by ruling that Comins's failure to comply with the presuit notice requirement of section 770.01 barred his claims because the section only applies to a "media defendant" and VanVoorhis is not a "media defendant."
Although the express language of section 770.01 does not limit the type of defendant entitled to presuit notice, "[e]very Florida court that has considered the question has concluded that the presuit notice requirement applies only to `media defendants,' not to private individuals." Zelinka v. Americare Healthscan, Inc., 763 So.2d 1173, 1175 (Fla. 4th DCA 2000).
The "media defendant" issue arises because of certain language appearing in prior decisions of the Florida Supreme Court. In Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1112 (Fla.2008), the court commented
Section 770.01 was originally enacted in 1933 and, until 1976, applied only to actions brought for publication of a libel in a newspaper or periodical:
§ 770.01, Fla. Stat. (1950) (emphasis added). In Ross v. Gore, the Florida Supreme Court explained that one of the objectives of the Legislature when originally enacting the statute was to "afford to newspapers and periodicals an opportunity in every case to make a full and fair retraction in mitigation of the damages which a person may have suffered by reason of the publication." 48 So.2d at 415. The issue in Ross was the constitutionality of section 770.01. One of the arguments advanced by the appellant was that the statute violated the equal protection clause of the Federal Constitution because it "grants a special privilege to newspapers and periodicals...." Id. at 414. In response to this argument, the Ross court discussed the purpose of granting newspapers and periodicals such "special privilege":
Id.
Another argument advanced by the Ross appellants was that, in the absence of notice and a retraction, their suit for defamation should not have been dismissed but, rather, should have been limited to actual damages. According to the appellants, to construe the section as a condition precedent would be unconstitutional. Id. at 415. In response to this argument, the court held that the clear language of the statute established that notice was a condition precedent to suit. Id. The court reasoned that construing the statute otherwise would "defeat what must have been one of the objectives of the Legislature in enacting the statute." Id. The court explained that the purpose of section 770.01 was "also to afford to newspapers and periodicals an opportunity in every case to make a full and fair retraction in mitigation of the damages which a person may have suffered by reason of the publication. This objective is a salutary one, and we do not think it constitutes unjust discrimination in favor of newspapers and periodicals." Id.
Id. In other words, the Ross court determined that it is necessary in a democracy for the people to have speedy access to fact reporting and editorial comment. The Ross court was especially concerned that removing the safeguards of section 770.01 would result in a press that is "so inhibited that its great and necessary function of policing our society through reporting its events and by analytical criticism would be seriously impaired." Id. at 415.
In 1976, section 770.01 was amended to apply to actions brought for publication or broadcast of a libel or slander in a newspaper, periodical, or other medium. Perhaps the Legislature enacted this amendment to expand the protection of the section to include only radio and television broadcasts. Indeed, at that time, other sections of chapter 770 were amended to include explicit references to radio and television broadcasts. However, the amended language of section 770.01 was not so specific.
In Laney v. Knight-Ridder Newspapers, Inc., 532 F.Supp. 910 (S.D.Fla.1982), Judge King had to decide whether section 770.01 applied to protect the author of an allegedly defamatory letter to the editor that was published by Knight-Ridder Newspapers. The plaintiff in the case had not complied with the section's presuit notice requirement as to the letter's author, but argued that the requirement did not apply to nonmedia defendants. Id. at 912.
Judge King observed that:
Id. Moreover, Judge King found that "it would be grossly unfair to construe the statute in such a way as to deny non-media defendants the opportunity to mitigate actual damages or avoid the assessment of punitive damages." Id. at 913. This is so because "[n]otice affords defendants the opportunity to issue a retraction or even to settle the overall conflict, thereby mitigating damages or eliminating litigation altogether. At the very least, notice may afford a non-media defendant the chance to consult with an attorney about legal
In this ruling, Judge King acknowledged that the Florida Supreme Court's decision in Ross "provides perhaps the strongest support for plaintiff's position." However, Judge King stated that, "[w]hile the [Ross court] indirectly referred to the statute's applicability in terms of newspapers and periodicals, it did not specifically describe the parameters of the statute's applicability, nor, for that matter, provide sufficient justification for its decisions to discuss applicability solely in terms of newspapers and periodicals." Id. at 912. Rather, "[t]he [Ross court] may very well have discussed the applicability of the statute in these terms simply because the defendants in the case were media-defendants." Id. at 912 n. 6.
Judge King's reasoning has since been rejected by other courts addressing this issue. In Bridges v. Williamson, 449 So.2d 400 (Fla. 2d DCA 1984), the Second District noted that the Ross court construed 770.01 "to apply exclusively to suits against newspapers and periodicals, as distinguished from private individuals." Id. at 401. When section 770.01 was later amended, "the legislature was aware of Ross since it is presumed to be cognizant of the judicial construction of a statute when contemplating changes in the statute." Id. (citing Seddon v. Harpster, 403 So.2d 409 (Fla.1981)). Thus, "[h]ad the legislature intended to extend the application of the statute to nonmedia defendants, it could have inserted such a provision into the statute at that time." Id. Rather, "[t]he language of the statute is limited to newspapers, periodicals, and other media. Nowhere does the statute contain the words `nonmedia' or `private individuals.'" Id.
A week after the Bridges opinion was published, the Third District published its opinion in Davies v. Bossert, 449 So.2d 418 (Fla. 3d DCA 1984), in which it also held that section 770.01 applies only to media defendants. In Davies, the court was confronted with whether the plaintiff was required to follow the 770.01 presuit notice requirement before filing suit for slander over "allegedly defamatory statements made by a private citizen [about a lobster fisherman he believed was stealing lobster from the nets of other fishermen] over an emergency channel of a citizen's band radio." Id. at 419. The Davies court held that this non-media defendant was not entitled to presuit notice under section 770.01. Id. at 421. Disapproving of Judge King's ruling in Laney, the Davies court stated:
Id. at 420. Then, the Davies court examined the 1976 revision of the statute:
Id.; see also Gifford v. Bruckner, 565 So.2d 887 (Fla. 2d DCA 1990) (citing to Davies for the proposition that "other medium" includes only television and radio broadcasters).
The Davies court's rationale was implicitly rejected in Nelson v. Associated Press, Inc., 667 F.Supp. 1468 (S.D.Fla.1987). In Nelson, the plaintiff relied on Davies and Bridges to argue that section 770.01 did not apply to dispatches transmitted by the Associated Press over their wire service. Id. at 1473-74. Rejecting the plaintiff's argument, Judge Spellman ruled that the language "other medium" should be read broadly to include wire services like the AP.
In Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So.2d 1376 (Fla. 4th DCA 1997), the plaintiff had successfully argued to the trial court that section 770.01 did not apply to the defendant in the case. On appeal, the court rejected the plaintiff's argument:
Id. at 1378.
The Mancini opinion mainly concerns the plaintiff's argument that section 770.01 applies only to actions against the newspaper itself. Rejecting this argument, the Mancini court held that interpreting Ross to exclude reporters, editorial writers, and columnists from the protection of 770.01 would be "contrary not only to the plain language of the statute, but to the legislative
The Mancini court stressed that its interpretation of the scope of section 770.01 "does not conflict with the series of cases holding the statute does not apply to `non-media defendants' ... [r]ather, the question is what is meant by `non-media defendant,' a term not appearing within the statute, but only in case law." Id. at 1380. The court explained:
According to the Mancini court, the scope of section 770.01's protection is defined by separating third parties who are not engaged in the dissemination of news and information "through the news and broadcast media" from those who are so engaged.
In Ortega Trujillo v. Banco Central Del Ecuador, 17 F.Supp.2d 1334 (S.D.Fla. 1998), Judge King sought to do just that. In Ortega Trujillo, the defendant — a public-relations firm in the business of public relations and lobbying for its clients — sought protection under section 770.01 for a press release it published that contained allegedly defamatory statements. Rejecting the defendant's contention that it qualified as a media defendant, Judge King explained that "[b]y definition, all news media disseminates information, but it is a syllogism to conclude ... that all those who disseminate information automatically qualify as news media." Id. at 1338.
Attempting to define the scope of "news media," Judge King stated:
Id. Judge King found that the defendant was in the business of public relations and lobbying, and so could not fall within the definition of media, no matter how "nebulous" that definition is. Id. In particular, the defendant "does not impartially disseminate information. Nor, for that matter, does it issue unsolicited, disinterested
Eventually, our courts were confronted with cases involving defamatory statements made over the internet. In Zelinka, 763 So.2d at 1173, the court had to decide whether a plaintiff in a libel action arising out of a posting on an internet "message board" was required to comply with the presuit notice requirements of section 770.01. Ultimately, the court held that the defendant was "a mere internet-using, private individual," and not a media defendant to which the presuit notice requirements apply. Id.
The facts of Zelinka were as follows:
Id. at 1174. The petitioner/defendant argued that the internet is an "other medium" within the meaning of the statute, but the Zelinka court declined to reach that issue. Rather, the court held that "[e]ven if an internet bulletin board was a `medium' within the scope of the statute, no precedent would allow this court to extend the statutory notice requirement to a private individual who merely posts a message on the board." Id. at 1175. The court characterized the petitioner/defendant in that case as being in "the same position as that of the private individuals in the Davies, Bridges and Gifford cases, whose statements were `broadcast' to the public, but who themselves were not members of `the media.'" Id. However, the Zelinka court did acknowledge, in dictum, that "[i]t may well be that someone who maintains a web site and regularly publishes internet `magazines' on that site might be considered a `media defendant' who would be entitled to notice." Id.
Such a defendant was found to be entitled to presuit notice in Alvi Armani Medical, Inc. v. Hennessey, 629 F.Supp.2d 1302 (S.D.Fla.2008). In Alvi, the defendant was the owner, host, and publisher of a website called the "Hair Restoration Network," which was identified as being "dedicated to providing information to the consumer public about the hair restoration and transplant industry." Id. at 1303-04. The defendant claimed that the defamation suit should be dismissed because the plaintiffs had failed to comply with section 770.01. The defendant argued that "notice was required in this case because the `other medium' language used in section 770.01 includes the internet and internet forums such as the website at issue in this case." Id. at 1307. The plaintiffs, on the other hand, argued that the "other medium" of section 770.01 was intended to include only television and radio broadcasting stations, and thus no notice was required in their case. Id.
In deciding whether section 770.01 applied to the defendant, Judge Lenard first acknowledged that "[w]hether the internet is included as part of the `other medium' language ... is an issue that has not been definitively resolved by the Supreme Court of Florida...." However, Judge Lenard found to be persuasive two Florida lower
Judge Lenard pointed out that "all of the cases cited by Plaintiffs in support of their argument — with the exception of [Zelinka] — pre-date, by at least a decade, the use of the internet by the general public, and do not directly address whether the internet is considered in the category of `other medium' as contemplated by section 770.01." Id. at 1308. Judge Lenard further ruled that Zelinka was inapposite to the case because the Alvi defendant was not a "private individual who merely posts a message on [an internet] board." Id. Rather, "Plaintiffs have brought suit against a company that allegedly owns, hosts and publishes the offending website, which provides information to the consumer public, and against the principal owner of that website, who is alleged to control the website's operations." Id.
Most recently, in Five for Entertainment, S.A. v. Rodriguez, 877 F.Supp.2d 1321 (S.D.Fla.2012), a concert promoter sued the defendants, a Reggaeton musician ["Daddy Yankee"] and his booking agency, for defamation resulting from a press release that the defendants posted on their respective websites. Relying on Alvi, the defendants argued that the publication of the allegedly defamatory statements on their websites fell within the "other medium" language of section 770.01. Id. at 1326. In response, the plaintiffs argued that section 770.01's protection did not apply to the defendants "simply because technology now enables those individuals to publish information on the internet." Id. at 1326-27.
When deciding the issue, Judge Seitz first pointed out that the parties' arguments had "unnecessarily confused the issue." Id. at 1327. Judge Seitz said:
Id. "Accordingly, § 770.01 does not extend to nonmedia defendants." Id. With that stated, Judge Seitz went on to rule on whether the defendants in the case were
Id.
With this emerging legal landscape in mind, we turn to the case here, where the trial court granted summary judgment in favor of VanVoorhis because it determined that the words "other medium" of section 770.01 were expansive enough to include the internet and a blog, and that VanVoorhis's blog falls under the rubric of "other medium." In support of this ruling, the trial court cited to the Alvi decision, which applied section 770.01 to a defendant who made defamatory statements on his website, where his website was owned and operated for the purpose of providing consumer information on the hair restoration and transplant industry. Comins argues that the trial court erred by only considering whether the internet blog is a "medium" under section 770.01 and not whether VanVoorhis is a "media defendant."
Important to the analysis here is the Ross court's discussion of the legitimate government interest in requiring presuit notice as a condition precedent under section 770.01. In support of its finding that the condition precedent was a valid exercise of the legislature's power, the court emphasized the need for the free dissemination of news and fair comment thereon in order for the public to obtain as much information about a particular event as possible before forming an opinion. Not only did the court emphasize the importance of the dissemination of facts, but it also emphasized the importance of the dissemination of "fair comment" and "analytical criticism." The court said that "it is vital that no unreasonable restraints be placed upon the working news reporter or the editorial writer." Ross, 48 So.2d at 415 (emphasis added).
In answering the question whether VanVoorhis's blog and blog posts come within the purview of the prescribed "other medium" entitled to presuit notice, we look to the Ross decision to determine whether the blog is operated to further the free dissemination of information or disinterested and neutral commentary or editorializing as to matters of public interest. VanVoorhis contends that blogs like "Public Intellectual" have "stepped into the void left by a shrinking print industry, and perform the same important function — delivering news, information, and commentary to the masses." On the other hand, Comins characterizes VanVoorhis as merely
As early as 2005, Judge Posner discussed the changing face of news media brought about by the internet:
Richard A. Posner, Bad News, N.Y. Times, July 31, 2005 (book review), at 1, 10.
Agree or disagree with Judge Posner's characterization of the travails of "conventional media" and the virtues of blogs, it is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide.
There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even-handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis's blog, at issue here, is within the ambit of the statute's protection as an alternative medium of news and public comment.
AFFIRMED.
LAWSON and COHEN, JJ., concur.
Id. at 189.
