PBCBA BAR BULLETINS pbcba_bulletin_April 2019 | Page 25

EXPRESS MALICE: Express malice is defined as follows: “Where a person speaks upon a privileged occasion, but the speaker is motivated more by a desire to harm the person defamed than by a purpose to protect the personal or social interest giving rise to the privilege, then it can be said that there was express malice and the privilege is destroyed. Strong, angry, or intemperate words do not alone show express malice; rather there must be a showing that the speaker used his privileged position “to gratify his malevolence.” If the occasion of the communication is privileged because of a proper interest to be protected, and the defamer is motivated by a desire to protect that interest, he does not forfeit the privilege merely because he also in fact feels hostility or ill will toward the plaintiff.” See Demby v. English, 667 So. 2d 350 (Fla. 1st DCA 1995) citing Nodar v. Galbreath, 462 So. 2d 803 (Fla. 1984). See also Florida Jury Instruction MI 4.3, Defamation: Private Claimant, Nonmedia Defendant With or Without Qualified Privilege , which reads in relevant part: “The issues for your determination on the claim of (claimant) against (defendant) are:….Issue whether defendant abused qualified privilege: The issue for your determination is therefore whether, as (claimant) contends, (defendant) made the statement with improper motives abusing that privilege. One makes a false statement about another with improper motives if one’s primary motive and purpose in making the statement is to gratify one’s ill will, hostility and intent to harm the other, rather than [to advance or protect (defendant’s) interest, right or duty to speak to (name) on that subject] [or] [to advance or protect the interests of the person to whom the statement was made].” W. Jay Hunston, Jr. Mediator/Arbitrator Since 2001, limiting his practice to all forms of effective dispute resolution, including mediation, arbitration, special master, and private judging services. • • • • CONCLUSION: The term “good faith” as used in §415.1036, F.S. is not defined. However, if the report to the central abuse hotline is not false [as defined in §415.102(10)], or made with express malice [as defined in Nodar], then it is arguably made in good faith and would be a complete defense to an action for slander. • • • • J.D., Stetson Univ. College of Law Fla. Bar Bd. Cert. Civil Trial Lawyer, 1983-2003 Fla. Cert. Circuit Civil, Appellate & Family Mediator Member, AAA Roster of Neutrals for Commercial and Construction Arbitration and Mediation Qualified Fla. Arbitrator FINRA Approved Mediator Statewide Per Diem Rate Available Upon Request Hourly Rates Available (No Charge for Travel Time Within 15th, 19th, and 17th Circuits) P.O. Box 508, Stuart, FL 34995 [phone]; [phone] - Office [phone] - Fax Email: [email protected] Website/Online Calendar: www.hunstonadr.com RE-ELECT GRASFORD SMITH Palm Beach County Bar Association Board of Directors Leadership Experience Highlights Palm Beach County Bar Association Board Member, 2016-Present Transaction Law Committee Chair, 2013-2014 The Florida Bar Grievance Committee 15E, Vice Chair, 2019-Present Civil Procedures Rules Committee, 2014-2017 Leadership Academy Inaugural Graduate, 2013-2014 Virgil Hawkins Florida Chapter National Bar Association President Elect, 2018-2019 Vice President, 2017-2018 Cunningham Bar Association President, 2010-2011 Legal Aid Society of Palm Beach County Board Member, 2011-Present Grasford W. Smith Best Lawyers in America, 2019 Martindale-Hubbell,  AV® Rated, 2013-2019 For a full list of experience, please visit jonesfoster.com/electgrasfordsmith 505 South Flagler Drive Suite 1100 West Palm Beach Florida   33401 gsmith@ jonesfoster.com 561 659 3000 PALMBEACHBAR.ORG 25 VOTE APRIL 9-18 Partners in Progress