Ball v. D'LITES ENTERPRISES, INC.
65 So. 3d 637
Fla. Dist. Ct. App.2011Background
- Plaintiffs Ball, Coffey, and Rosenblum licensed to sell D'Lites’ ice cream under franchise agreements with D'Lites Enterprises and Gerald Corsover.
- Plaintiffs alleged breach of contract and fraud in inducement due to misrepresentations about nutritional content and low calories.
- Defendants posted warnings on their website accusing plaintiffs of trademark violations and fraud after suit was filed.
- Plaintiffs sought injunctive relief to remove the website statements; trial court denied the injunction.
- Plaintiffs amended the complaint to include defamation; defendants moved to dismiss arguing absolute litigation privilege.
- Trial court dismissed the defamation claim; appellate court held website publications are not protected by the litigation privilege and reversed to reinstate the defamation claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether website statements are protected by the litigation privilege | Plaintiffs contend statements on the site are connected to pending litigation and should be absolutely immune. | Defendants argue the statements are not within the judicial process and are not protected. | Not protected; website publications are outside the judicial process and not immune. |
| Scope of absolute immunity for extrajudicial publications to the press via the internet | Plaintiffs argue the internet publication could be within privilege if connected to litigation. | Defendants rely on Buckley-type limitations; press-type publication is not covered. | Not covered; internet publication to world at large is not “necessarily preliminary” to litigation. |
| Whether the defamation claim should be reinstated given the above ruling | Defamation claim should proceed since not protected by privilege. | Defamation claim should be barred by privilege or dismissed with the others. | Defamation claim reinstated; privilege does not apply to website publication. |
Key Cases Cited
- Levin v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) (discusses absolute privilege in judicial proceedings)
- Buckley v. Fitzsimmons, 509 U.S. 259 (U.S. 1993) (press conference statements not protected by absolute immunity)
- Stewart v. Sun Sentinel Co., 695 So. 2d 360 (Fla. 4th DCA 1997) (publication to press; limited scope of privilege; not necessarily preliminary to proceedings)
- Pratt v. Nelson, 164 P.3d 366 (Utah 2007) (statements to newspapers about pending litigation not protected by judicial privilege)