Preliminary Injunctions Against Defamatory Speech Seldom Justified

Courts grant temporary injunctions sparingly and only after the moving party has alleged and proved facts entitling it to relief. Injunctive relief generally is not available to prohibit the making of defamatory statements as prior restraints on speech violate the First Amendment to the United States Constitution. Injunctions may sometimes be granted, however, where the defamatory words are made in the furtherance of the commission of another intentional tort. Care must be taken to ensure that any injunction is narrowly tailored to achieve the pin-pointed objective of the needs of the case, as prior restraints on speech are considered the most serious and least tolerable infringement on First Amendment rights.

In Chevaldina v. R.K./FL Management, Inc., a Florida appellate court found that the trial court had abused its discretion in granting an injunction against defamatory speech. Irina Chevaldina was an unhappy former tenant of R.K. Management which owned and managed commercial properties in South Florida. When R.K. discovered that Ms. Chevaldina was the author of anonymous, unflattering blog posts about it, it added several tort claims to its already pending action for defamation per se and libel against the previously anonymous blogger. The tort claims included counts for tortious interference with contractual and advantageous business relationships.

In order obtain a temporary injunction in Florida, the moving party must show: (1) a likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; (4) that the threatened injury to the petitioner outweighs the possible harm to the respondent; and (5) that the granting of the temporary injunction will not disserve the public interest . The trial court determined that Ms. Chevaldina had gagged.jpgblogged extensively about R.K. and that many of the postings were arguably defamatory. The court enjoined Ms. Chevaldina from interfering with R.K.’s advantageous or contractual and business relationships either directly or indirectly, in person, orally, in writing or via blog or other posts on the Internet or in any media. In support of its order, the trial court found that R.K. had a substantial likelihood of ultimately prevailing on the merits, a substantial threat of irreparable injury to R.K. existed , the threatened injury to R.K. outweighed whatever damage the injunction would cause Ms.Chevaldina and the injunction would not be adverse to the public interest.

On appeal, the Third District Court of Appeal cited two Florida cases dealing with the limited exception to the general rule that injunctive relief is not available to prohibit defamatory speech. Both cases involved statements made as part of alleged tortious interference with advantageous business relationships. In Zimmerman v. D.C.A. at Welleby, Inc., an injunction was appropriate because the moving party demonstrated that the damages were incalculable which constituted a special harm of irreparable injury. In Murtagh v. Hurley, injunctive relief was available because the defamatory statements caused current medical patients to end their relationships with Dr. Murtagh. However, because the doctor failed to present evidence that the defendant’s conduct had a deleterious effect on his business, he was not entitled to an injunction.

Here, R.K. alleged defamation and intentional interference with advantageous business relationships. However, the court found that the record did not support an inference that the allegedly defamatory blog posts were having a deleterious effect on R.K.’s business. The only real evidence presented was the testimony of a real estate broker about a call he received from the director of real estate for Subway expressing concern about Ms. Chevaldina’s blog posts. However, the witness testified that Subway had not withdrawn any leases and had not stopped doing business with R.K. after reading the blogs.

R.K.’s other evidence consisted of requests for judicial notice of affidavits and testimony about search engine optimization techniques and word stuffing on the Internet. The court found that these materials did not constitute competent substantial evidence that any blog post interfered with R.K.’s business or contractual relationships. As there was no real evidence of unjustified interactions with specific parties known to be involved or likely to be involved in an advantageous business or contractual relationship with R.K., the trial court should have denied the temporary injunction for failure to show with reasonable certainty the elements of tortious interference.

Additionally, an injunction should never be broader than is necessary, and here the injunction was over broad. The injunction improperly burdened Ms. Chevaldina’s speech more than necessary, attempted to enjoin future defamation and failed to put Ms. Chevaldina on notice as to what she may or may not do under the injunction.

In conclusion, the court noted that Internet rants are common today and are the electronic successors to persons holding posters on a public sidewalk in front of a business warning customers not to do business there. If such a protestor walked into the business and harangued customers or threatened violence, his previously protected opinion would become business interference. Similarly, a blogger may complain about a business and face liability for defamation if warranted, but injunctive relief to prohibit such complaining is another matter altogether.

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