A Florida appellate court has affirmed a trial court’s judgment and award of $350,000 in damages in favor of a Florida attorney who claimed she had been defamed in online reviews.

Ann-Marie Giustibelli, a South Florida family law attorney, had represented Copia Blake in a divorce proceeding against Peter Birzon before Giustibelli and Blake’s attorney-client relationship turned sour.  Then, both Blake and Birzon published defamatory statements about Giustibelli in a series of online reviews.

Giustibelli filed a lawsuit against both for libel and breach of contract.

Blake v. Ann-Marie Giustibelli, P.A.

Blake and Birzon’s critical online reviews of Giustibelli, published on numerous websites, included allegations that the attorney had charged her client four times the amount that was quoted in the initial agreement.  For example: “No integrity. Will say one thing and do another. Her fees outweigh the truth. Altered her charges to 4 times the original quote with no explanation.”

At trial, both Blake and Birzon admitted to posting the reviews and further admitted that Giustibelli had not, in fact, charged Blake four times the amount from the initial agreement.  The trial court – the Seventeenth Judicial Circuit of Florida (Broward County) – determined that the online reviews about Giustibelli were, thus, defamatory and awarded her $350,000 in punitive damages.

Blake and Birzon filed an appeal with the Florida Fourth District Court of Appeal, but Birzon eventually withdrew his appeal after settling with Giustibelli.  Both had initially argued, however, that the online reviews about Blake’s former attorney contained statements of opinion and were thus protected speech and not defamatory.

The appellate court disagreed.  Given that the appellants had admitted to posting the online reviews about Giustibelli, which included false statements that Blake’s attorney had misrepresented her fees and falsified a contract, the court found these statements to be factually false and, thus, not protected free speech.

Defamation – including false statements published online, of course – is not protected by the First Amendment.

Media defendants in Florida

One of the appellants’ other arguments, included in the appellate opinion for the benefit of the public, was that defamation per se no longer existed following the famous Supreme Court case Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Defamation (or libel) per se refers to the concept that certain statements may be so appalling that a court will assume that damages – normally required when pursuing a defamation claim – need not be proven; they are presumed.

However, the Fourth District Court of Appeal noted that the Florida Supreme Court no longer recognized defamation per se for cases involving only media defendants, meaning media defendants must always prove damages in defamation cases.  See Mid-Fla. Television Corp. v. Boyles, 467 So. 2d 282, 283 (Fla. 1985).

But Blake and Birzon, by simply publishing online reviews on various websites, could not be considered “media defendants,” according to the court.  It is worth noting, however, that Florida ruled in 2014 that bloggers (obviously distinguishable from publishers of a few online reviews) should be treated as publishers, similar to “traditional” media defendants.

In Comins v. VanVoorhis, 135 So. 3d 545 (Fla. Dist. Ct. App. 2014), the court held that a graduate student who published allegedly defamatory statements on a personal blog was protected by Florida’s § 770.01, which requires a prospective defamation plaintiff to notify the potential media defendant about the article and allegedly defamatory statements five days before filing a defamation lawsuit (for purposes of them potentially publishing a retraction).

Florida, along with about half of the other states, limits the amount of recoverable damages for defamation plaintiffs if they do not first provide publishers advance notice of the lawsuit and demand a written retraction.