Online Reviews – Defamation Per Se

Posted: August 29, 2016 By: De Novo Review Category: Online

Category: Online Review

Subject: Business

By: Genny A. Castellanos and Kelly, Senior Attorney, De Novo Review

Online Reviews – Defamation Per Se

A person writes an online review having little thought of its legal implication. We are after all the country of free speech. Shortly after, the company who was the subject of the review files a lawsuit for defamation per se against the person. Because the post also appeared to be affiliated with the company that the individual defendant worked with at the time, his employer is also named as a defendant in the lawsuit.

Defense counsel may leverage the rules of evidence to combat the lawsuit. Specifically, to prove his claim, Plaintiff, in a defamation per se must introduce evidence of the plaintiff made a publication that “imputes to another conduct, characteristics, or a condition incompatible with the proper exercise of his lawful business, trade, profession or office.” Hevey v. News-Journal Corp., 148 So. 2d 543, 550 (Fla. 1st DCA 1963). “Authenticity or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fla. R. Evid. 90-901. “Computer printouts, like business records, are admissible if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product.” Pickrell v. Florida, 301 So. 2d 473, 474 (Fla. 2d DCA 1974).

An article from the American Bar Association outlines two main questions in determining proper authentication of evidence:

    1. Does the information appear on the website and does it accurately reflect the exhibit as it appeared on the website?

    2. Whether the posting can be shown to have arisen from the source that the proponent claims?

“The Authentication of Social Media Postings,” American Bar Association, David I. Schoen, dated May 17, 2011 available at https://apps.americanbar.org/litigation/committees/trialevidence/articles/051711-authentication-social-media.html.

To satisfy the first question, plaintiff may introduce testimony of a person who viewed the online review and printed it from the website. In response, defense counsel could raise a genuine issue about the reliability and accuracy of the evidence given the role of hackers.

As for the second question, it may be more difficult to prove that the online review was posted by the defendant. For example, if the “author” denies writing it. Then the plaintiff may have to resort to a forensic computer expert to trace the source. In lieu of an expert, the fact finder may consider other factors that demonstrate the “author” is indeed, the author. A totality of the circumstances analysis would include such factors as a corroborating photograph, that nobody else had the password to the author’s website, and the context of the message.

Florida case law on social media authentication is not well developed but here are a few examples of how the courts (State and Federal) have addressed the issue:

St. Luke’s Cataract and Laser Institute, P.A., 2006 WL 1320242 (M.D. Fla. 2006) (previous versions of website pages downloaded from archive.org site were not admissible because no witness with personal knowledge of how the archive website worked testified) (distinguished by Saadi v. Maroun, 2009 WL 3736121 (M.D. Fla. 2009) (where witness testified that he knew how website looked and that he printed them out, evidence from website was admissible).

U.S. v. Lebowitz, 676 F. 3d 1000 (11th Cir. 2012) (printouts of internet chats admissible where one participant testified that he printed out the chats)

Nationwide Mutual Fire Ins. Co. v. Darragh, 95 So.3d 897 (Fla. 5th DCA 2012) (printouts from U.S Government websites were hearsay and not properly authenticated because party relied on documents for the truth of the matter asserted (benefits), but did not authenticate as public record).

Question Presented: Must a Condominium Association renew its declaration similar to an HOA, which must renew its covenants and restrictions before expiration?

The answer depends on the deeds recorded for the condominium documents.

Several years ago, and much to the surprise of many communities (both homeowners associations and condominium associations), the Florida courts ruled that recorded covenants and restrictions were subject to the Marketable Record Titles Act MRTA (Ch. 712) and were not automatically exempted from its drastic effect. This meant that any such covenants and restrictions that were recorded prior to the date of the root title would automatically become void and unenforceable unless they fell into an exemption. The exemption that most commonly applies to condominium associations is the following: any claims that are specifically and validly re-recorded after the date of the root title, and those claims that are specifically referenced in a document that is recorded after the date of the root title will not be abolished.

The vast majority of condominium units are transferred using deeds that define the unit by specifically referring to the actual Declaration of Condominium (e.g. Unit 111 according to the Declaration recorded at Official Records Book 2222, Page 33 of the Public records of Broward County, Florida). For this reason, the requirements of the specific exemption above are usually met because each new deed specifically references the covenants and restrictions. However, because condominiums can be deeded by reference to the plat of the condominium, it is critical that all deeds be reviewed to determine that the exemption applies. In those very rare times when the exemption does not apply, the condominium association must administratively re-adopt its covenants and restrictions pursuant to Chapter 712 of the Florida Statutes.

  Under MRTA, residential homeowners’ associations are treated differently than condominium associations. HOA’s are required to preserve the integrity of the declaration (of covenants and restrictions) for the entire community to retain the status of the declaration as the source of marketable title with regard to the transfer of a member’s residence.  Florida law requires that this process be undertaken at least once every thirty (30) years.  The failure to take such action prior to the expiration of the thirty (30) year time will result in the expiration of the covenants, which can then be reinstated only with a vote of the homeowners pursuant to Section 712.11 of the Florida Statutes.

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