Florida Court: Blogger Entitled To A Pre-Suit Retraction Demand For Alleged Defamatory Comments

by Holland & Knight LLP


  • In Comins v. VanVoorhis, a Florida court has addressed the question of whether bloggers should be treated as "publishers" under defamation and libel law.
  • The court's ruling – one that could have consequences nationwide – is a win for independent news gatherers and publishers in Florida. It recognizes that bloggers may be afforded the same protections as broadcasters and print publishers if the purpose of their blogs is to further the free dissemination of information.

An intermediate appellate court in Florida has issued an opinion that construes Florida's retraction demand statute in a way that could have far-reaching consequences both within Florida and throughout the United States. The issue concerns whether bloggers should be treated as "publishers" under defamation and libel law.

Through its opinion affirming summary judgment against a plaintiff who had filed a libel action against the writer of a blog, Florida's Fifth District Court of Appeal held that a graduate student who posted alleged defamatory comments on his blog was entitled under Florida Statutes Section 770.01 to receive a written retraction demand before he could be sued for libel. See Comins v. VanVoorhis, 2014 WL 1393081 (Fla. 5th DCA Apr. 11, 2014).


The case involved comments published on a blog by Matthew VanVoorhis, a doctoral student at the University of Florida, about a controversial pet shooting that received media attention in Central Florida in the summer of 2008. Christopher Comins had been charged with misdemeanor animal cruelty after he shot and killed a dog while its owner was attempting to restrain it; this was after the dog had harassed cattle owned by Comins's neighbor. The shooting, which had been videotaped and posted on YouTube by a witness not named in the lawsuit, resulted in public outcry against Comins.

VanVoorhis posted comments criticizing Comins's conduct on "Public Intellectual," a blog he operated on a free blogging website under the pseudonym "M. Frederick Voorhees," and several viewers of the blog posted Comins's personal and business contact information and threats to Comins's life in the blog's comments section. VanVoorhis founded the blog in 2007 "in order to publicly comment on issues of public concern in an intellectual manner without tying my comments to my professional identity." Prior to posting about Comins, VanVoorhis had written "critiques of academia as an institution and its ability to connect with the public" and had won a "Thinking Blogger Award" for an article he had written and posted on the "McDonaldization of Citizenship."

Comins traced the blog posts to the University of Florida's computer network and, after procuring VanVoorhis's full name and address from university police, sent letters to VanVoorhis through counsel demanding that VanVoorhis either delete the entire blog or at least delete the comments containing death threats and his contact information. However, those letters did not identify any false or defamatory statements in the blog, and Comins made no attempt before filing suit against VanVoorhis to identify any false or defamatory statements contained in his blog.

Florida's Pre-Suit Retraction Demand Statute (Fla. Stat. §770.01)

Florida is one of 26 states with statutes that limit the damages libel plaintiffs may recover if they do not provide the publishers or broadcasters they intend to sue written retraction demands that identify the false or defamatory statements that they claim harmed them. See Fla. Stat. §770.01. Florida is also one of nine such states that require the service of a written retraction demand as a condition precedent for filing a libel suit. ("Before any 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 filing 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.")

After Comins filed suit against VanVoorhis for libel and defamation, the trial court denied VanVoorhis's request to dismiss Comins's initial complaint for Comins's failure to comply with the presuit notice requirement of Fla. Stat. §770.01, based upon the representation by Comins's attorney that a presuit notice had been sent. Comins then amended the complaint to allege that VanVoorhis was not entitled to pre-suit notice under Section 770.01 because he is not a media defendant; but to the extent VanVoorhis was entitled to such notice, he received it through the letters from Comins's attorney demanding that the blog be deleted. The trial court subsequently entered summary judgment in favor of VanVoorhis based on Comins's failure to comply with the requirement in Section 770.01 to identify specific false and defamatory statements; it said VanVoorhis's blog "falls under the rubric of ‘other medium' as used in section 770.01."

The Court's Analysis

On appeal, Florida's Fifth District Court of Appeal agreed with the trial court that Comins was required to provide VanVoorhis a written retraction demand identifying the specific false and defamatory statements made on his blog, even though VanVoorhis was not a broadcaster or the publisher of a newspaper or magazine. The court reached this conclusion after providing a detailed examination of cases construing Florida's retraction demand statute against a variety of other libel defendants.

The court began by noting the importance to its analysis of the Florida Supreme Court's discussion in Ross v. Gore, 48 So. 2d 412, 414-15 (Fla. 1950) about the legitimate government interests supporting Section 770.01's pre-suit notice requirement, which included "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," as well as "the importance of the dissemination of ‘fair comment' and ‘analytical criticism.'" It further agreed with the holding in Ross that "it is vital that no unreasonable restraints be placed on the working news reporter or the editorial writer."

The court then explained that the question concerning whether VanVoorhis's blog and blog posts constituted an "other medium" entitled to a pre-suit retraction demand under Section 770.01 must be answered by determining "whether the blog is operated to further the free dissemination of information ordisinterested and neutral commentary or editorializing as to matters of public importance." It concluded (without specifying why) that VanVoorhis's blog was operated for such purposes and therefore "is within the ambit of the statute's protection as an alternative medium of news and public comment." It did so only after acknowledging that it was "not prepared to say that all blogs and bloggers would qualify" for such protection, however.

Before reaching this conclusion, the court opined about why "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 has been transformative":

By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word "blog" itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word "blog," we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of a "media," and, if accused of defamatory statements, will qualify as a "media defendant" for purposes of Florida's defamation law as discussed above.

Implications for Future Libel Actions Against Bloggers

Comins is the latest in a small but growing number of cases and other legal debates concerning whether and, if so, what kinds of bloggers or publishers of Internet content should be afforded the same protection as print and broadcast journalists. Indeed, one of the more controversial points of contention for the Free Flow of Information Act bill still awaiting passage by Congress is a provision that narrowly defines "covered journalist" to exclude bloggers. See Trevor Hunter, ‘Free Flow of Information Act' Is Bad for Journalism, Epoch Times, Apr. 1, 2014.

The court's holding in Comins is therefore a victory for independent news gatherers and publishers in Florida, in its recognition that bloggers may be afforded the same statutory protections as broadcasters and print publishers, so long as their blogs are "operated to further the free dissemination of information or disinterested and neutral commentary or editorializing as matters of public interest."

In addition, although the court's decision turned on unique statutory language that does not appear in the retraction statutes of other states (publications in an "other medium," as opposed to simply newspapers and periodicals), Comins may be a useful precedent for bloggers in other states with retraction statutes that do not yet protect independent journalists who publish content exclusively on the Internet. Bloggers in most states have no recourse but to challenge their entitlement to statutory protections in the courts by requesting treatment as publishers or journalists, as only Washington state has enacted a statute that expressly applies a pre-suit retraction notice requirement to defamatory statements contained in "electronic transmissions" (and that statute is less than a year old). See Wash. Rev. Code §7.96.030(2) (2013).

To its credit, the Comins court did not over-simplify its analysis by dismissing VanVoorhis as "a mere internet-using, private individual," like the defendant in Zelinka v. Americare Healthscan, Inc., who was held to not be entitled to a Section 770.01 pre-suit retraction notice because he had posted an alleged defamatory comment on an Internet message board that he did not own or maintain. By considering the history and other content on VanVoorhis's blog, the court recognized that "many blogs and bloggers fall within the broad reach of ‘media,' and, if accused of defamatory statements, will qualify as a ‘media defendant' for purposes of Florida's defamation law."

The court arguably gave short shrift to the practical difficulties that persons harmed by defamatory comments posted on anonymous blogs may face in serving retraction demands. For example, Comins was not able to locate VanVoohis by simply looking to the blog with which he took issue. He had to trace the source of the blog to the University of Florida's computer network and serve his initial retraction request to VanVoorhis's pseudonym care of the University of Florida. He appears to have located an actual mailing address for VanVoohis more than one month later, after reporting the blog to the University of Florida Police Department. In a footnote, the court dismissed any difficulty Comins faced in communicating his retraction request to VanVoohis, stating that, "[f]ailing any other alternative, Comins could have posted a retraction notice in the comments section of VanVoohis's blog." However, this alternative may not be suitable to libel victims looking for speedy retraction of defamatory statements on blogs, particularly those who are reluctant to promote offending blogs and invite further comment on defamatory statements by posting retraction demands in the comments sections of those blogs.

Those fearing an opening of the flood gates to universal treatment of bloggers and independent commentators as conventional print and broadcast journalists also need not panic. The Florida court recognized that "[o]ther blogs run the gamut of quality of expertise, explanation and even-handed treatment of their subjects." A blog with content not inviting public comment or reflecting the same even-handed treatment of their subjects as was found on "Public Intellectual" in this case may not be afforded protection under Florida's pre-suit retraction notice statute by the Fifth DCA or other courts in Florida. Nevertheless, plaintiffs in Florida who are considering filing actions for libel against bloggers should serve retraction demands that specify false or defamatory statements in the defamatory blogs to avoid the risk that their libel actions will be dismissed for non-compliance with Florida Statutes Section 770.01.

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Holland & Knight LLP

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