In Ball v. D’Lites Enterprises (4D09-4859), the Fourth District held that "that statements made on a party’s website are not protected by the litigation privilege." The court described the facts as follows:
According to the plaintiffs, they were induced to enter into these agreements by representations about the nutritional content, and low caloric values of the ice cream, and were told these “light” products could be sold to diabetics. D’Lites supplied the product for the ice cream, but the plaintiffs found that it was virtually impossible for them to meet the nutritional requirements promised to them using D’Lites goods. They requested that the defendants modify the formula but the defendants declined to do so. Without a product as promised, the plaintiffs sued the defendants for various causes of action over their agreement, including claims for breach of contract and fraud in the inducement.
After the plaintiffs filed suit against the defendants, the defendants placed warnings to the public on their website stating that plaintiffs had violated certain trademarks. A memorandum on the defendants’ website stated that the plaintiffs were selling products and labeling them as D’Lites when they actually were not. The defendants’ website stated that “you need to know the product they are passing off as D’Lites Emporium ice cream is in fact a hoax.”
The plaintiffs then filed an amended complaint alleging defamation by the defendants. The defendants moved to dismiss, claiming that the statements were protected by the litigation privilege which provides absolute immunity regarding any act in the course of a judicial proceeding, regardless of whether the act involved a defamatory statement or other tortious behavior, so long as the act had some relation to the proceeding...
The trial court agreed and dismissed the defamation count of the amended complaint.The Fourth District disagreed and held:
“Immunity for statements made during a judicial proceeding has a long legal history, as noted in” Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (
1994)…..The issue presented in this case is whether the statements by a party on its commercial website constituted a statement made in connection with judicial proceedings. We hold that it does not. Fla.
We analogize the publication of statements on the internet to calling a press conference with the media or otherwise publishing defamatory information to the newspapers or other media.
the website publication in this case was not made in connection with the judicial proceeding. It was not made in the proceedings itself, nor was it made to a participant connected to the proceeding such as a witness. Like statements to the newspapers or press conferences, these statements have no part in the judicial proceedings. Instead, they were made to the world at large through the website and accused the plaintiffs of fraud and perpetrating a hoax on the public. These statements were not “necessarily preliminary” to judicial proceedings, because unlike either Ange or Stewart the statements were not steps in the judicial process.
The judicial proceeding immunity should not be extended to such publications, because it does nothing to enhance policy behind the privilege which is to provide free and full disclosure of facts in a judicial proceeding. It is not communication directed to participants which must remain unhindered by fear of civil lawsuits. Instead, it most likely does just the opposite, and information relevant to lawsuits may be less likely to be shared for fear that it will be posted on the internet.
The website statements are not protected by absolute immunity given to statements made in judicial proceedings. Therefore, we reverse the partial final judgment and order the reinstatement of the plaintiffs’ defamation claim.