Q: What criteria needs to be met for a defamation of character lawsuit?

A: You should consider immediately demanding a retraction and that the information be removed.

A common law claim for defamation requires the unprivileged publication (to a third party) of a false and defamatory statement concerning another, with fault amounting to at least negligence on behalf of the publisher, with damage ensuing. Thomas v. Jacksonville Television, Inc., 699 So.2d 800 (Fla. 1st DCA 1997). A communication is “defamatory” if it tends to harm the reputation of another as to lower him or her in estimation of community or deter third persons from associating or dealing with the defamed party. Id. at 803. Defamation actions often raise Constitutional concerns and First Amendment jurisprudence distinguishes between two classifications of plaintiffs: “private individuals” and “public figures.” Private individuals are governed by the common law test as laid out above; as such, they need only allege negligence on behalf of the publisher in order to maintain a defamation action. However, where public figures are concerned, the state’s interest in protecting the defamed subject’s reputation is lessened, and as such, public plaintiffs must allege a higher level of mens rea on behalf of defendant publishers, in order to balance the attendant First Amendment concerns bound up with defamation and public speech. See Mile Marker, Inc. v. Petersen Publishing, L.L.C., 811 So.2d 841, 845 (Fla. 4th DCA 2002); see also Razner v. Wellington Regional Medical Center, Inc., 837 So.2d 437, 442 (Fla. 4th DCA 2002) (“To establish a cause of action for defamation, a plaintiff must show that (1) the defendant published a false statement about the plaintiff, (2) to a third party, and (3) the falsity of the statement caused injury to the plaintiff.”).

A: I agree with my colleague Mark. One thing I would add is if you do maintain a cause of action against the party who defamed you, a lawyer would be reluctant to take the case unless there was a potential source of recovery. Homeowners insurance policies do protect against their insured if they make a defamatory statement against another person. However, most homeowners insurance policies do not cover these torts, unless the insured pays for an add on rider to their Insurance policy- which covers defamatory torts. So if there is coverage under his homeowners insurance policy, then counsel would be more likely to take the case.