Florida Senate - 2023                                    SB 1220
       
       
        
       By Senator Brodeur
       
       
       
       
       
       10-01866B-23                                          20231220__
    1                        A bill to be entitled                      
    2         An act relating to defamation and related actions;
    3         amending s. 90.5015, F.S.; specifying that the
    4         professional journalist’s privilege does not apply to
    5         defamation or related actions; creating s. 770.001,
    6         F.S.; specifying that an action for defamation
    7         includes other specified actions; creating s. 770.045,
    8         F.S.; specifying that the publication of an altered or
    9         unaltered photograph, video, or audio recording may
   10         form the basis of a defamation action; amending s.
   11         770.05, F.S.; specifying proper venue for a defamation
   12         cause of action; creating s. 770.09, F.S.; specifying
   13         that certain actions are insufficient to make a person
   14         a public figure for purposes of a defamation action;
   15         creating s. 770.11, F.S.; specifying that a defamatory
   16         allegation is made with actual malice for purposes of
   17         a defamation action under certain circumstances;
   18         creating s. 770.12, F.S.; providing that the
   19         negligence standard applies in a defamation action in
   20         which the defendant does not identify the source for a
   21         defamatory statement; creating s. 770.13, F.S.;
   22         providing that the negligence standard applies to a
   23         defamation action by a public figure if the defamatory
   24         statement does not relate to the reasons for the
   25         plaintiff’s public figure status; amending ss. 768.295
   26         and 720.304, F.S.; specifying that defendants in
   27         certain actions are only entitled to attorney fees and
   28         costs under certain circumstances; providing
   29         construction; providing an effective date.
   30          
   31  Be It Enacted by the Legislature of the State of Florida:
   32  
   33         Section 1. Section 90.5015, Florida Statutes, is amended to
   34  read:
   35         90.5015 Journalist’s privilege.—
   36         (1) DEFINITIONS.—For purposes of this section, the term:
   37         (a) “Professional journalist” means a person regularly
   38  engaged in collecting, photographing, recording, writing,
   39  editing, reporting, or publishing news, for gain or livelihood,
   40  who obtained the information sought while working as a salaried
   41  employee of, or independent contractor for, a newspaper, news
   42  journal, news agency, press association, wire service, radio or
   43  television station, network, or news magazine. Book authors and
   44  others who are not professional journalists, as defined in this
   45  paragraph, are not included in the provisions of this section.
   46         (b) “News” means information of public concern relating to
   47  local, statewide, national, or worldwide issues or events.
   48         (2) PRIVILEGE.—A professional journalist has a qualified
   49  privilege not to be a witness concerning, and not to disclose
   50  the information, including the identity of any source, that the
   51  professional journalist has obtained while actively gathering
   52  news. This privilege applies only to information or eyewitness
   53  observations obtained within the normal scope of employment and
   54  does not apply to physical evidence, eyewitness observations, or
   55  visual or audio recording of crimes. A party seeking to overcome
   56  this privilege must make a clear and specific showing that:
   57         (a) The information is relevant and material to unresolved
   58  issues that have been raised in the proceeding for which the
   59  information is sought;
   60         (b) The information cannot be obtained from alternative
   61  sources; and
   62         (c) A compelling interest exists for requiring disclosure
   63  of the information.
   64         (3) DISCLOSURE.—A court shall order disclosure pursuant to
   65  subsection (2) only of that portion of the information for which
   66  the showing under subsection (2) has been made and shall support
   67  such order with clear and specific findings made after a
   68  hearing.
   69         (4) WAIVER.—A professional journalist does not waive the
   70  privilege by publishing or broadcasting information.
   71         (5) CONSTRUCTION.—This section must not be construed to
   72  limit any privilege or right provided to a professional
   73  journalist under law.
   74         (6) AUTHENTICATION.—Photographs, diagrams, video
   75  recordings, audio recordings, computer records, or other
   76  business records maintained, disclosed, provided, or produced by
   77  a professional journalist, or by the employer or principal of a
   78  professional journalist, may be authenticated for admission in
   79  evidence upon a showing, by affidavit of the professional
   80  journalist, or other individual with personal knowledge, that
   81  the photograph, diagram, video recording, audio recording,
   82  computer record, or other business record is a true and accurate
   83  copy of the original, and that the copy truly and accurately
   84  reflects the observations and facts contained therein.
   85         (7) ACCURACY OF EVIDENCE.—If the affidavit of authenticity
   86  and accuracy, or other relevant factual circumstance, causes the
   87  court to have clear and convincing doubts as to the authenticity
   88  or accuracy of the proffered evidence, the court may decline to
   89  admit such evidence.
   90         (8) APPLICATION TO DEFAMATION AND RELATED ACTIONS.—This
   91  section does not apply to defamation or related actions against
   92  a professional journalist.
   93         (9) SEVERABILITY.—If any provision of this section or its
   94  application to any particular person or circumstance is held
   95  invalid, that provision or its application is severable and does
   96  not affect the validity of other provisions or applications of
   97  this section.
   98         Section 2. Section 770.001, Florida Statutes, is created to
   99  read:
  100         770.001 Definition.—As used in this chapter, an action for
  101  defamation includes actions for libel, slander, and related
  102  causes of action recognized in this state.
  103         Section 3. Section 770.045, Florida Statutes, is created to
  104  read:
  105         770.045 Defamation by photograph, video, or audio
  106  recording.—The publication of an altered or unaltered
  107  photograph, video, or audio recording may form the basis of a
  108  defamation action.
  109         Section 4. Section 770.05, Florida Statutes, is amended to
  110  read:
  111         770.05 Venue for defamation actions Limitation of choice of
  112  venue.—
  113         (1) A No person may not shall have more than one choice of
  114  venue for damages for libel or slander, invasion of privacy, or
  115  any other tort founded upon any single publication, exhibition,
  116  or utterance, such as any one edition of a newspaper, book, or
  117  magazine, any one presentation to an audience, any one broadcast
  118  over radio or television, or any one exhibition of a motion
  119  picture. Recovery in any action shall include all damages for
  120  any such tort suffered by the plaintiff in all jurisdictions.
  121         (2) Venue for a cause of action for defamation is proper in
  122  a county identified in s. 47.011, including any county where the
  123  defamatory material is accessed by a third party.
  124         Section 5. Section 770.09, Florida Statutes, is created to
  125  read:
  126         770.09 Public figures for purposes of defamation or related
  127  actions.—A person is not a public figure for purposes of a
  128  defamation action if the person acquires fame or notoriety from
  129  one or more of the following:
  130         (1) Publicly defending himself or herself against
  131  accusations.
  132         (2) Granting an interview on a specific topic.
  133         (3) Obtaining public employment in a capacity other than as
  134  an elected officeholder or an appointee of an elected
  135  officeholder.
  136         (4) Uploading a video, image, or statement on the Internet
  137  which has reached a broad audience.
  138         Section 6. Section 770.11, Florida Statutes, is created to
  139  read:
  140         770.11 Clarifying defamation standards.—A defamatory
  141  allegation is made with actual malice for purposes of a
  142  defamation action if any of the following apply:
  143         (1) The defamatory allegation is fabricated by the
  144  defendant, is the product of his or her imagination, or is based
  145  wholly on an unverified, anonymous report.
  146         (2) The defamatory allegation is so inherently improbable
  147  that only a reckless person would have put it into circulation.
  148         (3) If the defamatory allegation was based on an informant
  149  or an informant’s report, there are obvious reasons to doubt the
  150  veracity of the informant or his or her report. Obvious reasons
  151  exist to doubt the veracity of a report if:
  152         (a) There is sufficient contrary evidence that was known or
  153  should have been known to the defendant after a reasonable
  154  investigation; or
  155         (b) The report is inherently improbable or implausible on
  156  its face.
  157         Section 7. Section 770.12, Florida Statutes, is created to
  158  read:
  159         770.12 Unidentified source for a defamatory statement;
  160  negligence standard applicable.—If the actual malice standard
  161  otherwise applies to a defamation action in which the defendant
  162  does not identify the source for a defamatory statement, the
  163  plaintiff need only prove that the defendant acted negligently
  164  in making the defamatory statement.
  165         Section 8. Section 770.13, Florida Statutes, is created to
  166  read:
  167         770.13 Defamatory statements unrelated to public figure
  168  status; negligence standard applicable.—In a defamation action
  169  based on an alleged defamatory statement that does not relate to
  170  the reasons for the plaintiff’s status as a public figure, the
  171  plaintiff need only prove that the defendant acted negligently
  172  in making or repeating the defamatory statement.
  173         Section 9. Subsection (4) of section 768.295, Florida
  174  Statutes, is amended to read:
  175         768.295 Strategic Lawsuits Against Public Participation
  176  (SLAPP) prohibited.—
  177         (4) A person or entity sued by a governmental entity or
  178  another person in violation of this section has a right to an
  179  expeditious resolution of a claim that the suit is in violation
  180  of this section. A person or entity may move the court for an
  181  order dismissing the action or granting final judgment in favor
  182  of that person or entity. The person or entity may file a motion
  183  for summary judgment, together with supplemental affidavits,
  184  seeking a determination that the claimant’s or governmental
  185  entity’s lawsuit has been brought in violation of this section.
  186  The claimant or governmental entity shall thereafter file a
  187  response and any supplemental affidavits. As soon as
  188  practicable, the court shall set a hearing on the motion, which
  189  shall be held at the earliest possible time after the filing of
  190  the claimant’s or governmental entity’s response. The court may
  191  award, subject to the limitations in s. 768.28, the party sued
  192  by a governmental entity actual damages arising from a
  193  governmental entity’s violation of this section. The court shall
  194  award the prevailing party reasonable attorney fees and costs
  195  incurred in connection with a claim that an action was filed in
  196  violation of this section. A defendant in an action for
  197  defamation or similar action who files a motion to dismiss or
  198  motion for summary judgment under this section is entitled to
  199  attorney fees and costs only if the statement was not
  200  negligently made. This subsection does not shift a party’s
  201  burden of proof.
  202         Section 10. Paragraph (c) of subsection (4) of section
  203  720.304, Florida Statutes, is amended to read:
  204         720.304 Right of owners to peaceably assemble; display of
  205  flag; SLAPP suits prohibited.—
  206         (4) It is the intent of the Legislature to protect the
  207  right of parcel owners to exercise their rights to instruct
  208  their representatives and petition for redress of grievances
  209  before the various governmental entities of this state as
  210  protected by the First Amendment to the United States
  211  Constitution and s. 5, Art. I of the State Constitution. The
  212  Legislature recognizes that “Strategic Lawsuits Against Public
  213  Participation” or “SLAPP” suits, as they are typically called,
  214  have occurred when members are sued by individuals, business
  215  entities, or governmental entities arising out of a parcel
  216  owner’s appearance and presentation before a governmental entity
  217  on matters related to the homeowners’ association. However, it
  218  is the public policy of this state that government entities,
  219  business organizations, and individuals not engage in SLAPP
  220  suits because such actions are inconsistent with the right of
  221  parcel owners to participate in the state’s institutions of
  222  government. Therefore, the Legislature finds and declares that
  223  prohibiting such lawsuits by governmental entities, business
  224  entities, and individuals against parcel owners who address
  225  matters concerning their homeowners’ association will preserve
  226  this fundamental state policy, preserve the constitutional
  227  rights of parcel owners, and assure the continuation of
  228  representative government in this state. It is the intent of the
  229  Legislature that such lawsuits be expeditiously disposed of by
  230  the courts.
  231         (c) A parcel owner sued by a governmental entity, business
  232  organization, or individual in violation of this section has a
  233  right to an expeditious resolution of a claim that the suit is
  234  in violation of this section. A parcel owner may petition the
  235  court for an order dismissing the action or granting final
  236  judgment in favor of that parcel owner. The petitioner may file
  237  a motion for summary judgment, together with supplemental
  238  affidavits, seeking a determination that the governmental
  239  entity’s, business organization’s, or individual’s lawsuit has
  240  been brought in violation of this section. The governmental
  241  entity, business organization, or individual shall thereafter
  242  file its response and any supplemental affidavits. As soon as
  243  practicable, the court shall set a hearing on the petitioner’s
  244  motion, which shall be held at the earliest possible time after
  245  the filing of the governmental entity’s, business organization’s
  246  or individual’s response. The court may award the parcel owner
  247  sued by the governmental entity, business organization, or
  248  individual actual damages arising from the governmental
  249  entity’s, individual’s, or business organization’s violation of
  250  this section. A court may treble the damages awarded to a
  251  prevailing parcel owner and shall state the basis for the treble
  252  damages award in its judgment. The court shall award the
  253  prevailing party reasonable attorney attorney’s fees and costs
  254  incurred in connection with a claim that an action was filed in
  255  violation of this section. A defendant in an action for
  256  defamation or similar action who files a motion to dismiss or
  257  motion for summary judgment under this paragraph is entitled to
  258  attorney fees and costs only if the statement was not
  259  negligently made. This paragraph does not shift a party’s burden
  260  of proof.
  261         Section 11. This act shall take effect July 1, 2023.