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

Robert Rogers III is an Associate in the Orlando office


  • 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 gathers 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 or disinterested 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 gathers 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions