DEFAMATION CLAIMS NOT REQUIRED FOR PRESUIT NOTICE REQUIREMENTS FOR BOOKS AND MOVIES

Posted by Steven T. Lowe | Aug 01, 2019 | 0 Comments

On July 10, 2019, a Florida appeals court found that defamation contained in books and movies are not covered by a presuit retraction requirement for defamation suits; refusing to dismiss the claims of the grandson of former Columbian President Mariano Ospina Perez Francisco Javier Ospina Baraya's (“Ospina”), that claimed that the book “The Infiltrator” and its Hollywood movie adaptation falsely portrayed him as a collaborator of drug kingpin Pablo Escobar.

The Second District Court of Appeal of Florida said, “state courts have consistently interpreted section 770.01 of the Florida Statues, which requires a plaintiff to notify a defendant before filing a defamation suit, to apply only to news media,” and it rejected arguments that a reference in the statute to “other medium” means it applies to the defendants, who include author Robert Mazur (“Mazur”), publishers Penguin Random House LLC and Little, Brown and Co. Inc., and the movie's director, Brad Furman.

Additionally, the Florida court concluded its opinion by saying that lawmakers may want to revisit the law as technological developments blur the line between traditional news media — newspapers, magazines, radio and television stations — and other forms of media; “Whether the presuit notice protection under section 770.01 should have a wider reach in light of recent technological developments is a matter for the Florida Legislature to decide.”

“Section 770.01 originally applied only to publications in newspapers and periodicals, but the Legislature amended it in 1976 to include reference to ‘broadcast' in addition to ‘publication' and also added the reference to ‘or other medium,' in addition to newspapers and periodicals,” the opinion said.

Even after the amendment, which the Second District characterized as making “only minor amendments to the statute, consistent with technological developments in mass communication media,” courts have followed the Florida Supreme Court's that the legislative intent was to relieve press outlets from punitive damages in libel and slander suits and “to afford newspapers and periodicals an opportunity in every case to make a full and fair retraction in mitigation of the damages which a person may have suffered by reason of the publication.”

The book defendants — Mazur, KYC Solutions Inc., Penguin Random House LLC and Little, Brown and Co. Inc. — are represented by Gregg D. Thomas, Carol Jean LoCicero and Mark R. Caramanica of Thomas & LoCicero PL and Laura R. Handman and Geoffrey S. Brounell of Davis Wright Tremaine LLP.

The movie defendants — Good Film Pictures LLC, Good Film Productions U.S. Inc., Broad Green Pictures LLC, Infiltrator Productions Ltd., Ellen Brown Furman, Brad Furman, Yul Vazquez, Mazur and KYC Solutions — are represented by Alison M. Steele of Alison M. Steele PA and Louis P. Petrich of Leopold Petrich & Smith PC.

KYC Solutions is also represented by Gregory W. Kehoe of Greenberg Traurig LLP.

Ospina is represented by Jon Polenberg, Yasin Daneshfar and Andrew Polenberg of Becker & Poliakoff.

The case is Mazur et al. v. Ospina Baraya, case numbers 2D18-4268 and 2D18-4269, in the Second District Court of Appeal of Florida.

* Lowe & Associates (“The Firm”) is a boutique entertainment and business litigation firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving business, entertainment law and intellectual property, having provided top quality legal services to its clients since 1991. The Firm is recognized in multiple publications for its many achievements and high ethical standards, including Martindale-Hubbell and Super Lawyers.

Find us at our website at www.LoweLaw.com

About the Author

Steven T. Lowe

With more than 30 years of experience, Steven T. Lowe is one of the entertainment industry's preeminent attorneys. Known for, among other things, his groundbreaking work in the field of copyright law, his firm's devotion to advancing the interests of artists, creators, writers,

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