White v. Discovery Communications, LLC

First DCA

White v. Discovery Communications, LLC
1st DCA
5/10/23, Judge Bilbrey

Topics: Defamation, Internet Service Provider Liability, Libel, Motion to Dismiss, Personal Jurisdiction, Summary Judgment Standard

Okay, here’s a fun one. Nathaniel White shares a name with a serial killer from New York. A reality/crime TV show entitled “Evil Lives Here” aired an episode called “I Invited Him In” that featured the serial killer, Mr. White. But—DOH!--the show actually used a picture of the plaintiff taken decades ago by the Department of Corrections when he was incarcerated in Florida. He sued for defamation by libel, alleging that the episode defamed him by making people believe—through use of his picture—that he was the serial killer discussed in the episode.

Several of the defendants moved to dismiss the Complaint based on lack of personal jurisdiction. Mr. White alleged that the long-arm statute, section 48.193(1)(a)(2), Fla. Stat., provided personal jurisdiction because the defendants committed “intentional torts expressly aimed” at him that were “calculated to cause injury in Florida.”

A plaintiff has the burden of pleading a basis for jurisdiction, and quoting the operative statute even without supporting facts is sufficient. To challenge this initial allegation, defendants have to file affidavits, not just make argument. The affidavits alleged that these defendants did not broadcast or distribute any defamatory statement in Florida, meaning that none of the defendants committed the tort of defamation in Florida. One of the defendants, Red Marble, a television production company, swore that it did not have any activity in Florida and that it does not distribute or license television shows for distribution.

When a defendant’s affidavit contains factual allegations that, taken as true, show that his or her acts do not subject the defendant to long-arm jurisdiction, “the burden shifts back to the plaintiff to prove by affidavit or other sworn proof that a basis for long-arm jurisdiction exists.” Sadly for Mr. White, it looks like the law may be on his side, but he still screwed up. The long-arm statute is satisfied “when the nonresident makes allegedly defamatory statements about a Florida resident by posting those statements on a website, provided that the website posts containing the statements are accessible in Florida and accessed in Florida.” White stated in a response that by broadcasting the allegedly defamatory episode into Florida, Red Marble and its named employees committed a tort here. But Mr. White did not submit an affidavit about viewing the show in Florida, so the trial court was correct to grant the motion to dismiss.

Also, in regard to the corporate officers of Red Marble, Florida’s long-arm statute does not apply to persons merely acting on behalf of a corporation and for the benefit of the corporation without personally committing acts described in the long-arm statute). You sue the corporation, not the people who work for it. “The corporate shield doctrine provides that personal jurisdiction cannot be exercised over a nonresident corporate employee sued individually for acts performed in a corporate capacity.” So there was a separate reason to dismiss the case against the individuals who work for Red Marble.

Because of these principles, the court did not even reach the question of whether the defendants had minimum contacts with Florida.

Also, other defendants won on summary judgment. White alleged that other defendants including Microsoft Corporation are information content providers as defined in 47 U.S.C. § 230(f)(3), and that those defendants made the episode available through the internet or any internet service. But we all know where this is headed. A claim that a search engine or online search provider is responsible for a third party’s defamatory content is barred by 47 U.S..C. § 230, a part of the Communications Decency Act. Section 230(c)(1) states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230(e)(3) provides in part, “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

Notably, the court held that requests for discovery served a month before the summary judgment hearing were too late to be considered as a basis for extending the time for the summary judgment hearing because even if Mr. White been satisfied with all discovery responses from Microsoft, they could not have been filed at least 20 days before the summary judgment hearing as required by rule 1.510(c)(5). Thus, there was no abuse of discretion in the trial court’s denial of the motion to postpone since the responses could not have been used in opposition to Microsoft’s motion. (

NOTE: This reason is somewhat circular. If the hearing were postponed as requested, the discovery would not be received less than 20 days before the hearing. Certainly, the late request justified affirming the denial of a motion to continue a hearing, but stating that it would be pointless to move the hearing because the discovery was so close to the hearing simply does not make sense. If the hearing were postponed 60 days, the discovery would be received well prior to the reset hearing).

https://supremecourt.flcourts.gov/content/download/868433/opinion/download%3FdocumentV ersionID=fec84c6e-728f-4eb0-a129-070dd39380e4

Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
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