IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDAFIFTH DISTRICTNOT FINAL UNTIL TIME EXPIRES TOFILE MOTION FOR REHEARING ANDDISPOSITION THEREOF IF FILEDCHRISTOPHER M. COMINS,Appellant/Cross-Appellee,v.Case No. 5D11-2754MATTHEW FREDERICK VANVOORHIS,Appellee/Cross-Appellant.________________________________/Opinion filed April 11, 2014Appeal from the Circuit Courtfor Orange County,John Marshall Kest, Judge.Frank H. Killgore, Jr., and Christopher M.Harne, of Killgore, Pearlman, Stamp,Ornstein & Squires, P.A., Orlando, forAppellant/Cross-Appellee.Marc J. Randazza, of Randazza LegalGroup, Las Vegas, NV, Jason A. Fischer,of Randazza Legal Group, Miami, RichardA. Sherman, Sr., of Richard A. Sherman,P.A., Fort Lauderdale, and C. RichardFulmer, Jr., of Fulmer LeRoy AlbeeBaumann, P.L.C., Fort Lauderdale, forAppellee/Cross-Appellant.GRIFFIN, J.In this defamation case, Christopher Comins [“Comins”], appeals a trial courtorder entering partial final judgment in favor of Appellee/Cross-Appellant, MatthewVanVoorhis [“VanVoorhis”], for Comins’s failure to comply with the presuit noticerequirement of section 770.01, Florida Statutes (2008). Comins argues that the trialcourt erred because VanVoorhis is not a “media defendant” and thus is not entitled topresuit notice.Alternatively, Comins contends that, even if VanVoorhis had beenentitled to presuit notice, VanVoorhis waived that right by his efforts to remainanonymous.1 We affirm.This case arises out of a May 19, 2008 incident that involved Comins. Accordingto various reports prepared by the Orange County Sheriff’s Office, at around 4:30 p.m.,people began to notify authorities that two wolves or dogs were in a pasture with cattlelocated near the intersection of State Road 417 and Narcoosee Road. Over the nexttwo hours, the Orange County Sheriff’s Office Communications Center received multiplecalls. Some witnesses believed, at first, that the dogs were wolves; other witnessesstated that they knew the dogs were domestic animals because the dogs had collars.Witnesses reported observing the dogs circling and cornering the cattle, including ayoung calf. Some witnesses believed the dogs were just playing; others thought thedogs were acting in an aggressive manner. Eventually, reports came in that a man hadshot the dogs. Twenty people were listed as witnesses to the shooting.Comins, who is friends with the landowner, was driving past the pasture as theseevents were unfolding, and called to alert the landowner of the situation. According toComins and the landowner, the landowner told Comins that animals attacking the cattleshould be shot. Comins said he went into the pasture, was confronted by the dogs, felt1In his cross-appeal, VanVoorhis appeals a trial court order denying his motionfor sanctions under the trial court’s inherent authority and under section 57.105, FloridaStatutes (2011) [the “57.105 motion”]. VanVoorhis argues that the trial court erred bydenying the 57.105 motion because Comins’s counsel misrepresented to the court thatpresuit notice under section 770.01 had been given. We affirm the cross-appeal withoutfurther comment.2threatened, and shot at the dogs six times. The following narrative was prepared by theOrange County Sheriff’s Office in their investigative findings:After the sixth shot at the dogs, an unknown man (lateridentified as Christopher Butler [the dogs’ owner]) to Cominsran into the pasture to protect and/or take control of thedogs. Statements indicate that Butler was yelling that thedogs were his though Comins said he was not aware that hewas the actual owner nor did Comins hear Butler.Comins looked at this person (Butler) while Butler wasmoving to cover one of the dogs. Comins then turnedaround and fired the seventh and final shot at the seconddog.Comins had turned his back on the second dog, placed hisgun into his right back pocket and walked eleven steps awayfrom this dog. He then turns around, pulls his gun and firesthe seventh shot when the dog attempts to stand up asindicated in the original video.Where Butler is physically in control of the first dog and thesecond dog is having difficulty standing or moving far, theneed to continue shooting the second dog to protect thecattle is no longer required.Turning around to shoot the second dog behind Comins’back while Butler was present was unnecessary per FloridaState Statute 828.12 [Cruelty to Animals].Local news outlets, such as the Orlando Sentinel, WKMG Local 6, WESHChannel 2, and WFTV Channel 9, reported on the incident. Then, in early June 2008, awitness to the incident, who had caught the shooting on camera, posted the video of theshooting onto YouTube. Throughout the summer, the incident continued to be reportedin the news. Thousands of people signed an online petition, entitled “Justice for HuskyDogs Shot in Orange County, Florida,” demanding that Comins be charged with animalcruelty. Eventually, in late July, Comins was charged with one count of misdemeanoranimal cruelty.3VanVoorhis learned about the incident from a Facebook group that had beencreated to express outrage over the incident. At this time, VanVoorhis had a bachelor’sdegree in sociology from Indiana University, a master’s degree in sociology from theUniversity of Florida, and was working towards his doctoral degree in sociology at theUniversity of Florida. Since 2007, VanVoorhis had maintained a blog, entitled “PublicIntellectual,” using the online blog platform, WordPress.2He ran the blog under apseudonym, M. Frederick Voorhees (his full legal name being Matthew FrederickVanVoorhis). VanVoorhis testified in his deposition that he founded the blog in order to“publicly comment on issues of public concern in an intellectual manner without tying mycomments to my professional identity.”3VanVoorhis testified that he went by apseudonym to protect his identity because, while a student, he wrote critiques ofacademia as an institution and its ability to connect with the public. Relying on thevideo itself and the online news articles reporting the incident, VanVoorhis published theblog posts at issue in this case.Sometime in early 2009, Comins became aware of VanVoorhis’s blog posts.Comins traced the blog posts to the University of Florida’s computer network and,subsequently, through counsel, sent a letter [the "Killgore letter"] to “M. FrederickVoorhees” c/o the University of Florida on March 23, 2009. In this letter, Comins’sattorney, Frank H. Killgore, Jr. [“Attorney Killgore”], expressed concern over several2WordPress is a free blog and web hosting service. en.wordpress.com/tos/.VanVoorhis’s blog can be located at www.publicintellectual.wordpress.com.3VanVoorhis also testified in his deposition that “Public Intellectual” had won“The Thinking Blogger Award” (a weekly blogger award given to a thoughtful blog post)for an article, entitled The McDonaldization of Citizenship. VanVoorhis testified that thearticle applied a theory from George Ritzer’s book “The McDonaldization of Society” tothe idea of citizenship, and what it means to be an active citizen in the United States.4death threats that individuals had made in the blog’s comments section and over thefact that Comins’s personal and business contact information had been posted in thecomments section. Attorney Killgore requested that VanVoorhis delete the blog in itsentirety or, at least, remove the death threats and all references to Comins’s contactinformation.4 Comins then reported the blog post to the University of Florida PoliceDepartment, which contacted VanVoorhis about Comins’s complaint.Eventually, Comins obtained VanVoorhis’s full legal name and address. On May13, 2009, Comins filed a four-count complaint against VanVoorhis for libel (Count I),libel per se (Count II), defamation by implication (Count III), and tortious interferencewith a business relationship (Count IV). Thereafter, VanVoorhis filed a counterclaimagainst Comins for abuse of process and filed an answer and asserted elevenaffirmative defenses to Comins’s complaint.At issue here is VanVoorhis’s fifthaffirmative defense that Comins failed to comply with the presuit notice requirement ofsection 770.01 before filing the complaint against him. Section 770.01 provides:Before any civil action is brought for publication orbroadcast, in a newspaper, periodical, or other medium, of alibel or slander, the plaintiff shall, at least 5 days beforeinstituting such action, serve notice in writing on thedefendant, specifying the article or broadcast and thestatements therein which he or she alleges to be false anddefamatory.§ 770.01, Fla. Stat. (2008). VanVoorhis also filed a motion to dismiss the lawsuit on thissame basis. On September 10, 2010, the trial court held a hearing on the motion todismiss. Comins’s counsel, Christopher M. Harne [“Attorney Harne”], told the trial courtthat presuit notice had been sent. Based on this representation, the trial court granted4Comins contends that the Killgore letter was sufficient to meet the requirementsof section 770.01, Florida Statutes; however, this letter fails in its essential function tonotify the defendant that the article was false and defamatory.5VanVoorhis’s motion to dismiss, but gave Comins leave to amend his complaint toproperly plead compliance with the presuit notice requirement.Comins’s first amended complaint alleged that “Plaintiff complied with Fla. Stat. §770.01 in an abundance of caution by serving notice in writing on Defendant care of theUniversity of Florida on March 23, 2009, identifying the articles which Plaintiff alleges tobe false and defamatory.” Later, Comins filed a second amended complaint, whichamended the presuit notice allegation to read:Defendant is not a media defendant, and therefore Plaintiffwas not required to provide him with pre-suit notice beforeinstituting this action. However, even if this Court findsDefendant was entitled to pre-suit notice, which Plaintiffdenies, Plaintiff has either satisfied all conditions precedentto bringing this lawsuit or such conditions have been waivedor excused by Defendant’s conduct.On March 1, 2011, VanVoorhis filed a motion for summary judgment on thepresuit notice issue. The trial court held a hearing on VanVoorhis’s motion for summaryjudgment and ruled in favor of VanVoorhis based on Comins’s failure to comply with thepresuit notice requirement of section 770.01. The trial court said that “[t]he issue, then,is whether or a [sic] not Defendant’s blog falls under the rubric of ‘other medium’ asused in section 770.01.” Finding that “other medium” does include the internet, the trialcourt held that Comins was required to give VanVoorhis presuit notice under section770.01. The trial court also rejected Comins’s waiver argument as having no factual orlegal basis. We agree.55The record shows that it was not very difficult to find and to communicate withVanVoorhis. Failing any other alternative, Comins could have posted a retraction noticein the comments section of VanVoorhis’s blog. We approve the trial court’s conclusionas to waiver without further comment.6On appeal, Comins argues that the trial court erred by ruling that Comins’s failureto comply with the presuit notice requirement of section 770.01 barred his claimsbecause the section only applies to a “media defendant” and VanVoorhis is not a“media defendant.”Although the express language of section 770.01 does not limit the type ofdefendant entitled to presuit notice, “[e]very Florida court that has considered thequestion has concluded that the presuit notice requirement applies only to ‘mediadefendants,’ not to private individuals.” Zelinka v. Americare Healthscan, Inc., 763 So.2d 1173, 1175 (Fla. 4th DCA 2000).The "media defendant" issue arises because of certain language appearing inprior decisions of the Florida Supreme Court. In Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1112 (Fla. 2008), the court commented that “[u]nder Florida’s defamation law,a prospective plaintiff is required to give a media defendant notice five days beforeinitiating a civil action.” However, this language does not necessarily mean that onlymedia defendants are entitled to presuit notice under section 770.01.6 The line of casesimposing the “media defendant” requirement rely mainly on the Florida Supreme Court’smuch earlier opinion in Ross v. Gore, 48 So. 2d 412 (Fla. 1950).Section 770.01 was originally enacted in 1933 and, until 1976, applied only toactions brought for publication of a libel in a newspaper or periodical:6Indeed, the Florida Supreme Court has held that section 770.07, whichestablishes the point in time when a cause of action for defamation accrues, applies toboth media and private individual defendants. Wagner, Nugent v. Flanagan, 629 So. 2d113, 115 (Fla. 1993). The Wagner court acknowledged that chapter 770 primarilyaddresses media defendants, but the court pointed out that the chapter is broadly titled“Civil Actions for Libel” and that limiting section 770.07 to media defendants only “wouldallow potentially endless liability since Florida Statutes contains no statute of repose forthis particular tort.” Id.7Before any civil action is brought for publication, in anewspaper or periodical, of a libel, the plaintiff shall, at leastfive days before instituting such action, serve notice inwriting on defendant, specifying the article, and thestatements therein, which he alleges to be false anddefamatory.§ 770.01, Fla. Stat. (1950) (emphasis added). In Ross v. Gore, the Florida SupremeCourt explained that one of the objectives of the Legislature when originally enacting thestatute was to “afford to newspapers and periodicals an opportunity in every case tomake a full and fair retraction in mitigation of the damages which a person may havesuffered by reason of the publication.” 48 So. 2d at 415. The issue in Ross was theconstitutionality of section 770.01. One of the arguments advanced by the appellantwas that the statute violated the equal protection clause of the Federal Constitutionbecause it “grants a special privilege to newspapers and periodicals . . . . " Id. at 414.In response to this argument, the Ross court discussed the purpose of grantingnewspapers and periodicals such “special privilege”:The provision for retraction is peculiarly appropriate tonewspapers and periodicals, as distinguished from privatepersons. There is a valid difference in the classes, in thisrespect, which is sufficient to sustain the validity of theprovision under the ‘equal protection’ clause.Id.Another argument advanced by the Ross appellants was that, in the absence ofnotice and a retraction, their suit for defamation should not have been dismissed but,rather, should have been limited to actual damages. According to the appellants, toconstrue the section as a condition precedent would be unconstitutional. Id. at 415. Inresponse to this argument, the court held that the clear language of the statuteestablished that notice was a condition precedent to suit. Id. The court reasoned that8construing the statute otherwise would “defeat what must have been one of theobjectives of the Legislature in enacting the statute.” Id. The court explained that thepurpose of section 770.01 was “also to afford to newspapers and periodicals anopportunity in every case to make a full and fair retraction in mitigation of the damageswhich a person may have suffered by reason of the publication. This objective is asalutary one, and we do not think it constitutes unjust discrimination in favor ofnewspapers and periodicals.” Id.The discussion in Ross focused on the rationale for granting newspapers andperiodicals the right to retraction. First, the court emphasized that “[t]he public has aninterest in the free dissemination of news.” Id. The court stated:In the free dissemination of news, then, and fair commentthereon, hundreds and thousands of news items and articlesare published daily and weekly in our newspapers andperiodicals. This court judicially knows that it frequentlytakes a legal tribunal months of diligent searching todetermine the facts of a controversial situation. When it isrecalled that a reporter is expected to determine such factsin a matter of hours or minutes, it is only reasonable toexpect that occasional errors will be made. Yet, since thepreservation of our American democracy depends upon thepublic’s receiving information speedily—particularly upongetting news of pending matters while there still is time forpublic opinion to form and be felt—it is vital that nounreasonable restraints be placed upon the working newsreporter or the editorial writer.Id. In other words, the Ross court determined that it is necessary in a democracy forthe people to have speedy access to fact reporting and editorial comment. The Rosscourt was especially concerned that removing the safeguards of section 770.01 wouldresult in a press that is “so inhibited that its great and necessary function of policing oursociety through reporting its events and by analytical criticism would be seriouslyimpaired.” Id. at 415.79In 1976, section 770.01 was amended to apply to actions brought for publicationor broadcast of a libel or slander in a newspaper, periodical, or other medium. Perhapsthe Legislature enacted this amendment to expand the protection of the section toinclude only radio and television broadcasts. Indeed, at that time, other sections ofchapter 770 were amended to include explicit references to radio and televisionbroadcasts. However, the amended language of section 770.01 was not so specific.In Laney v. Knight-Ridder Newspapers, Inc., 532 F. Supp. 910 (S.D. Fla. 1982),Judge King had to decide whether section 770.01 applied to protect the author of anallegedly defamatory letter to the editor that was published by Knight-RidderNewspapers. The plaintiff in the case had not complied with the section’s presuit noticerequirement as to the letter’s author, but argued that the requirement did not apply tononmedia defendants. Id. at 912.Judge King observed that:[T]he provision fails to specify that notice need be providedonly to media-defendants. If the legislature did intend to solimit the applicability of this provision, it seems logical that aspecific restriction would have been inserted into the statute.One may reasonably infer from the generality of thelanguage, therefore, that the statute requires notice to allpotential defendants in an action for libel or slander.”Id. Moreover, Judge King found that “it would be grossly unfair to construe the statutein such a way as to deny non-media defendants the opportunity to mitigate actualdamages or avoid the assessment of punitive damages.” Id. at 913. This is so because“[n]otice affords defendants the opportunity to issue a retraction or even to settle theoverall conflict, thereby mitigating damages or eliminating litigation altogether. At the7The Ross court observed that it was the Legislature’s prerogative whether toinclude radio broadcasting stations within the terms of the statute. Id. at 414.10very least, notice may afford a non-media defendant the chance to consult with anattorney about legal matters with which (s)he may be extremely unfamiliar.” Id.In this ruling, Judge King acknowledged that the Florida Supreme Court’sdecision in Ross “provides perhaps the strongest support for plaintiff’s position.”However, Judge King stated that, “[w]hile the [Ross court] indirectly referred to thestatute’s applicability in terms of newspapers and periodicals, it did not specificallydescribe the parameters of the statute’s applicability, nor, for that matter, providesufficient justification for its decisions to discuss applicability solely in terms ofnewspapers and periodicals.” Id. at 912. Rather, “[t]he [Ross court] may very well havediscussed the applicability of the statute in these terms simply because the defendantsin the case were media-defendants.” Id. at 912 n.6.Judge King’s reasoning has since been rejected by other courts addressing thisissue. In Bridges v. Williamson, 449 So. 2d 400 (Fla. 2d DCA 1984), the SecondDistrict noted that the Ross court construed 770.01 “to apply exclusively to suits againstnewspapers and periodicals, as distinguished from private individuals.”Id. at 401.When section 770.01 was later amended, “the legislature was aware of Ross since it ispresumed to be cognizant of the judicial construction of a statute when contemplatingchanges in the statute.” Id. (citing Seddon v. Harpster, 403 So. 2d 409 (Fla. 1981)).Thus, “[h]ad the legislature intended to extend the application of the statute to nonmediadefendants, it could have inserted such a provision into the statute at that time.” Id.Rather, “[t]he language of the statute is limited to newspapers, periodicals, and othermedia. Nowhere does the statute contain the words ‘nonmedia’ or ‘private individuals.’”Id.11A week after the Bridges opinion was published, the Third District published itsopinion in Davies v. Bossert, 449 So. 2d 418 (Fla. 3d DCA 1984), in which it also heldthat section 770.01 applies only to media defendants.In Davies, the court wasconfronted with whether the plaintiff was required to follow the 770.01 presuit noticerequirement before filing suit for slander over “allegedly defamatory statements made bya private citizen [about a lobster fisherman he believed was stealing lobster from thenets of other fishermen] over an emergency channel of a citizen’s band radio.” Id. at419. The Davies court held that this non-media defendant was not entitled to presuitnotice under section 770.01. Id. at 421. Disapproving of Judge King’s ruling in Laney,the Davies court stated:Although the issue before the Florida Supreme Court inRoss was different, the court unavoidably recognized thatthe statute had no application to non-media defendants. Themain issue in Ross was whether the statute wasdiscriminatory in that it permitted media defendants to avoidpunitive damages by publishing a retraction or apology forlibelous statements while not affording the same privilege tonon-media defendants. The court did not hold, as doesLaney, that section 770.01 applies to media and non-medialibelees alike, but recognized that the unambiguouslanguage of the statutory condition precedent applies only tomedia defendants. Ross, 48 So. 2d at 414-15.Id. at 420. Then, the Davies court examined the 1976 revision of the statute:The earlier version of section 770.01, which was construedin Ross v. Gore, referred only to publication of a libel in anewspaper or periodical. In 1976, the statute was amendedto include reference to (1) “broadcast” (in addition to“publication”), (2) “other medium” (in addition to “newspaperand periodical”), and (3) “slander” (in addition to “libel”). Ch.76-123, § 1, Laws of Fla. The following additions were alsomade to Section 770.02: “or broadcast station” in thesection’s heading; “or broadcast” (as an addition to “article”);and a reference to correction, apology, or retraction in thecase of a broadcast. Section 770.03 was also amended soas to refer to broadcasting stations in general and not just to12radio broadcasting stations.Section 770.04 refersspecifically to the civil liability of an “owner, licensee, oroperator of a radio or television broadcasting station, and theagents, or employees of any such owner, licensee oroperator.”Since no other section of Chapter 770 uses the language“other medium” as found in section 770.01, we can inferreasonably that the legislature intended that term to includetelevision and radio broadcasting stations. There is nological reason to suppose that section 770.01 contemplatesany form of medium not covered by other sections of thechapter. In the absence of legislative history, we can look toearlier enactments and other sections of the present Chapter770 to determine the intent and meaning of the words “orother medium” in section 770.01. See Florida State RacingCommission v. McLaughlin, 102 So. 2d 574 (Fla. 1958) (ifpart of a statute appears to have a clear meaning ifconsidered alone but when given that meaning isinconsistent with other parts of the same statute or others inpari material, the court will examine the entire act and thosein pari material in order to ascertain the overall legislativeintent); Wheeler v. Green, 286 Or. 99, 593 P.2d 777, 791(1979) (in determining whether Oregon’s retraction statute’sreference to “publisher” was limited to a media entity, courtlooked to other provisions of the statute).Id.; see also Gifford v. Bruckner, 565 So. 2d 887 (Fla. 2d DCA 1990) (citing to Daviesfor the proposition that “other medium” includes only television and radio broadcasters).The Davies court’s rationale was implicitly rejected in Nelson v. AssociatedPress, Inc., 667 F. Supp. 1468 (S.D. Fla. 1987). In Nelson, the plaintiff relied on Daviesand Bridges to argue that section 770.01 did not apply to dispatches transmitted by theAssociated Press over their wire service.Id. at 1473-74.Rejecting the plaintiff’sargument, Judge Spellman ruled that the language “other medium” should be readbroadly to include wire services like the AP.In Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So. 2d 1376(Fla. 4th DCA 1997), the plaintiff had successfully argued to the trial court that section13770.01 did not apply to the defendant in the case. On appeal, the court rejected theplaintiff’s argument:To the extent [plaintiff’s] argument is based on the fact thatdefendant is a full-time assistant state attorney as well as apart-time columnist, we discern no logical distinctionbetween defendant and any other columnist. To the extentthat plaintiff asserts that the statute is applicable only toactions against the newspaper itself, as opposed to theindividuals writing for the newspaper, this restrictiveinterpretation of section 770.01 is not supported by thelanguage of the statute.Id. at 1378.The Mancini opinion mainly concerns the plaintiff’s argument that section 770.01applies only to actions against the newspaper itself.Rejecting this argument, theMancini court held that interpreting Ross to exclude reporters, editorial writers, andcolumnists from the protection of 770.01 would be “contrary not only to the plainlanguage of the statute, but to the legislative intent of the statute as expressed in Ross.”Id. The court further stated, “There is nothing in Ross to indicate that in using the term‘newspaper’ our supreme court was referring only to the entity as distinguished from theindividual columnists, reporters and editorial writers who write for the newspaper.” Id.Rather, the Mancini court observed that Ross emphasized that it is vital that nounreasonable restraints be placed upon the working news reporter or the editorial writer.Id. at 1379 (citing Ross, 48 So. 2d at 415). Moreover, the Mancini court noted that“there is nothing in the language of the companion retraction provision, section 770.02,that would limit the protection to the newspaper publisher . . . .” Id. at 1379.The Mancini court stressed that its interpretation of the scope of section 770.01“does not conflict with the series of cases holding the statute does not apply to ‘nonmedia defendants’ . . . [r]ather, the question is what is meant by ‘non-media defendant,’14a term not appearing within the statute, but only in case law.” Id. at 1380. The courtexplained:The use of the phrase “non-media defendant” in these caseswas not meant to distinguish between individuals andcorporations, but rather to separate third parties who are notengaged in the dissemination of news and informationthrough the news and broadcast media from those who areso engaged. In Davies the defendant, found to be a “nonmedia defendant,” was a private citizen who made thealleged defamatory statements over an emergency channelof a citizen’s band radio. In Bridges the court declined toextend the reach of the statute to protect a private individualwhose allegedly libelous statement had been republished bythe newspaper. In Gifford the “non-media defendant” wasan aerial advertising firm being sued for a banner towedoverhead by airplane. Most recently, in [Tobkin] . . . we heldthat the protection of section 770.01 did not cover individualswho sent letters to The Florida Bar.According to the Mancini court, the scope of section 770.01’s protection is defined byseparating third parties who are not engaged in the dissemination of news andinformation “through the news and broadcast media” from those who are so engaged.In Ortega Trujillo v. Banco Central Del Ecuador, 17 F. Supp. 2d 1334 (S.D. Fla.1998), Judge King sought to do just that. In Ortega Trujillo, the defendant—a publicrelations firm in the business of public relations and lobbying for its clients—soughtprotection under section 770.01 for a press release it published that contained allegedlydefamatory statements.Rejecting the defendant’s contention that it qualified as amedia defendant, Judge King explained that “[b]y definition, all news mediadisseminates information, but it is a syllogism to conclude . . . that all those whodisseminate information automatically qualify as news media.” Id. at 1338.Attempting to define the scope of “news media,” Judge King stated:The function of the media is to inform and to initiate“‘uninhibited, robust, and wide-open’ debate on public15issues.” See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339,94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (citing New YorkTimes Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11L.Ed.2d 686 (1964)).Id. Judge King found that the defendant was in the business of public relations andlobbying, and so could not fall within the definition of media, no matter how “nebulous”that definition is. Id. In particular, the defendant “does not impartially disseminateinformation. Nor, for that matter, does it issue unsolicited, disinterested and neutralcommentary as to matters of public interest, or editorialize as to matters of publicinterest without being commissioned to do so by its clients.” Id.Eventually, our courts were confronted with cases involving defamatorystatements made over the internet. In Zelinka, 763 So. 2d at 1173, the court had todecide whether a plaintiff in a libel action arising out of a posting on an internet“message board” was required to comply with the presuit notice requirements of section770.01. Ultimately, the court held that the defendant was “a mere internet-using, privateindividual,” and not a media defendant to which the presuit notice requirements apply.Id.The facts of Zelinka were as follows:Respondents, Americare Healthscan, Inc., AmericareDiagnostics, Inc., and Dr. Joseph P. D'Angelo, filed a fourcount complaint against petitioner, Robert Zelinka, and otherdefendants, alleging in counts I and II libel per se and libelper quod based on the publication of allegedly false anddefamatory statements on an internet “message board.” Thecomplaint alleges that the board where the messages wereposted is maintained for the purpose of transmittinginformation about Technical Chemicals and Products, Inc., acorporation which was involved in litigation with therespondents. Zelinka was not alleged to be the owner oroperator of the web site where the bulletin board waslocated.16Id. at 1174. The petitioner/defendant argued that the internet is an “other medium”within the meaning of the statute, but the Zelinka court declined to reach that issue.Rather, the court held that “[e]ven if an internet bulletin board was a ‘medium’ within thescope of the statute, no precedent would allow this court to extend the statutory noticerequirement to a private individual who merely posts a message on the board.” Id. at1175. The court characterized the petitioner/defendant in that case as being in “thesame position as that of the private individuals in the Davies, Bridges and Gifford cases,whose statements were ‘broadcast’ to the public, but who themselves were notmembers of ‘the media.’” Id. However, the Zelinka court did acknowledge, in dictum,that “[i]t may well be that someone who maintains a web site and regularly publishesinternet ‘magazines’ on that site might be considered a ‘media defendant’ who would beentitled to notice.” Id.Such a defendant was found to be entitled to presuit notice in Alvi ArmaniMedical, Inc. v. Hennessey, 629 F. Supp. 2d 1302 (S.D. Fla. 2008).In Alvi, thedefendant was the owner, host, and publisher of a website called the “Hair RestorationNetwork,” which was identified as being “dedicated to providing information to theconsumer public about the hair restoration and transplant industry.” Id. at 1303-04. Thedefendant claimed that the defamation suit should be dismissed because the plaintiffshad failed to comply with section 770.01.The defendant argued that “notice wasrequired in this case because the ‘other medium’ language used in section 770.01includes the internet and internet forums such as the website at issue in this case.” Id.at 1307. The plaintiffs, on the other hand, argued that the “other medium” of section770.01 was intended to include only television and radio broadcasting stations, and thusno notice was required in their case. Id.17In deciding whether section 770.01 applied to the defendant, Judge Lenard firstacknowledged that “[w]hether the internet is included as part of the ‘other medium’language . . . is an issue that has not been definitively resolved by the Supreme Court ofFlorida . . . .” However, Judge Lenard found to be persuasive two Florida lower courtdecisions, Canonico v. Calloway, 35 Med. L. Rptr. 1549 (Fla. Cir. Ct. Feb. 22, 2007),and Holt v. Tampa Bay Television, Inc., 34 Med. L. Rptr. 1540, 1542 (Fla. Cir. Ct. Mar.17, 2005), aff’d by 976 So. 2d 1106 (Fla. 2d DCA 2007). In Canonico, the trial courtdismissed the plaintiff’s defamation claim relating to statements made on the internetbecause the plaintiff had not complied with section 770.01.In Holt, the trial courtrejected the plaintiff’s contention that section 770.01 does not apply to stories publishedon the internet, even by a media defendant.Judge Lenard pointed out that “all of the cases cited by Plaintiffs in support oftheir argument – with the exception of [Zelinka] – pre-date, by at least a decade, the useof the internet by the general public, and do not directly address whether the internet isconsidered in the category of ‘other medium’ as contemplated by section 770.01.” Id. at1308. Judge Lenard further ruled that Zelinka was inapposite to the case because theAlvi defendant was not a “private individual who merely posts a message on [aninternet] board.”Id.Rather, “Plaintiffs have brought suit against a company thatallegedly owns, hosts and publishes the offending website, which provides informationto the consumer public, and against the principal owner of that website, who is allegedto control the website’s operations.” Id.Most recently, in Five for Entertainment, S.A. v. Rodriguez, 877 F. Supp. 2d 1321(S.D. Fla. 2012), a concert promoter sued the defendants, a Reggaeton musician[“Daddy Yankee”] and his booking agency, for defamation resulting from a press release18that the defendants posted on their respective websites.Relying on Alvi, thedefendants argued that the publication of the allegedly defamatory statements on theirwebsites fell within the “other medium” language of section 770.01. Id. at 1326. Inresponse, the plaintiffs argued that section 770.01’s protection did not apply to thedefendants “simply because technology now enables those individuals to publishinformation on the internet.” Id. at 1326-27.When deciding the issue, Judge Seitz first pointed out that the parties’ argumentshad “unnecessarily confused the issue.” Id. at 1327. Judge Seitz said:Whether the phrase “other medium” in § 770.01 includes theinternet is not the critical issue here, and, in this Court’sview, not even open for debate. That the internet constitutesa “other medium” for the purposes of § 770.01 should bewell-settled. See Alvi Armani, 629 F.Supp. 2d at 1307. If thedefendant in this case was the Miami Herald for example, itwould make no difference that the alleged statements werefound in the print or the online version of the paper. Themedium through which Defendants made the statementsthen, is not dispositive here. Rather, the issue is whetherthese Defendants are the type of parties contemplated toreceive pre-suit notice under § 770.01.There is no dispute in Florida about who is entitled to receivepre-suit notice under § 770.01.Florida courts haverecognized that the statute does not apply to private partiesor nonmedia defendants. Bridges v. Williamson, 449 So. 2d400, 401 (Fla. 2d DCA 1984). The Florida Supreme Courthas explained that one of the objectives of the statute was toafford newspapers and periodicals an opportunity to make afull retraction to correct errors and avoid exposure to punitivedamages. Ross v. Gore, 48 So. 2d 412 (Fla. 1950).Id. “Accordingly, § 770.01 does not extend to nonmedia defendants.” Id. With thatstated, Judge Seitz went on to rule on whether the defendants in the case were“nonmedia” defendants, and thus not entitled to the protection of section 770.01.19Ultimately, Judge Seitz found that the defendants were ”nonmedia” defendants.Specifically, Judge Seitz made the following findings:Turning to the Complaint, the Court finds no meaningfulallegations that the Defendants were engaged in thedissemination of news and information. The Complaintprovides that Daddy Yankee posted a press release on hispersonal website as well as Icaro’s, both of which areavailable to the public. The Complaint provides no otherallegations concerning any other information disseminatedfrom the websites. For example, there is no indication thatthe websites ever disseminated any other information,whether it be traditional news or simply self-promotional or“infomerical” materials. Assuming that the press releaseconstituted news, the one-time publication of that pressrelease does not render Daddy Yankee or Icaro members ofthe news media. They are private parties with their ownwebsites who released information about the cancellation ofDaddy Yankee’s tour on one occasion. Finding that DaddyYankee and Icaro were media parties on these facts wouldabolish any distinction between private parties and membersof the media.Id.With this emerging legal landscape in mind, we turn to the case here, where thetrial court granted summary judgment in favor of VanVoorhis because it determined thatthe words “other medium” of section 770.01 were expansive enough to include theinternet and a blog, and that VanVoorhis’s blog falls under the rubric of “other medium.”In support of this ruling, the trial court cited to the Alvi decision, which applied section770.01 to a defendant who made defamatory statements on his website, where hiswebsite was owned and operated for the purpose of providing consumer information onthe hair restoration and transplant industry. Comins argues that the trial court erred byonly considering whether the internet blog is a “medium” under section 770.01 and notwhether VanVoorhis is a “media defendant.”20Important to the analysis here is the Ross court’s discussion of the legitimategovernment interest in requiring presuit notice as a condition precedent under section770.01. In support of its finding that the condition precedent was a valid exercise of thelegislature’s power, the court emphasized the need for the free dissemination of newsand fair comment thereon in order for the public to obtain as much information about aparticular event as possible before forming an opinion.Not only did the courtemphasize the importance of the dissemination of facts, but it also emphasized theimportance of the dissemination of “fair comment” and “analytical criticism.” The courtsaid that “it is vital that no unreasonable restraints be placed upon the working newsreporter or the editorial writer.” Ross, 48 So. 2d at 415 (emphasis added).In answering the question whether VanVoorhis’s blog and blog posts come withinthe purview of the prescribed “other medium” entitled to presuit notice, we look to theRoss decision to determine whether the blog is operated to further the freedissemination of information or disinterested and neutral commentary or editorializing asto matters of public interest. VanVoorhis contends that blogs like “Public Intellectual”have “stepped into the void left by a shrinking print industry, and perform the sameimportant function – delivering news, information, and commentary to the masses.” Onthe other hand, Comins characterizes VanVoorhis as merely an individual “writing fromhis apartment under a pseudonym in between studying for his classes, [who] was underno pressure whatsoever to deliver any information at all, much less to deliver it quickly.”As early as 2005, Judge Posner discussed the changing face of news mediabrought about by the internet:The latest, and perhaps gravest, challenge to the journalisticestablishment is the blog. Journalists accuse bloggers ofhaving lowered standards. But their real concern is less21high-minded - it is the threat that bloggers, who are mostlyamateurs, pose to professional journalists and their principalemployers, the conventional news media. A seriousnewspaper, like The Times, is a large, hierarchicalcommercial enterprise that interposes layers of review,revision and correction between the reporter and thepublished report and that to finance its large staff dependson advertising revenues and hence on the good will ofadvertisers and (because advertising revenues depend to agreat extent on circulation) readers. These dependencesconstrain a newspaper in a variety of ways. But in addition,with its reputation heavily invested in accuracy, so that everyserious error is a potential scandal, a newspaper not onlyhas to delay publication of many stories to permit adequatechecking but also has to institute rules for avoiding error like requiring more than a single source for a story or limitingits reporters' reliance on anonymous sources - that cost itmany scoops.Blogs don't have these worries. Their only cost is the time ofthe blogger, and that cost may actually be negative if theblogger can use the publicity that he obtains from blogging togenerate lecture fees and book royalties. Having no staff, theblogger is not expected to be accurate. Having noadvertisers (though this is changing), he has no reason topull his punches. And not needing a large circulation to covercosts, he can target a segment of the reading public muchnarrower than a newspaper or a television news channelcould aim for. He may even be able to pry that segmentaway from the conventional media. Blogs pick off themainstream media's customers one by one, as it were.And bloggers thus can specialize in particular topics to anextent that few journalists employed by media companiescan, since the more that journalists specialized, the more ofthem the company would have to hire in order to be able tocover all bases. A newspaper will not hire a journalist for hisknowledge of old typewriters, but plenty of people in theblogosphere have that esoteric knowledge, and it was theywho brought down Dan Rather. Similarly, not beingcommercially constrained, a blogger can stick with and diginto a story longer and deeper than the conventional mediadare to, lest their readers become bored. It was the bloggers'dogged persistence in pursuing a story that the conventionalmedia had tired of that forced Trent Lott to resign as Senatemajority leader.22What really sticks in the craw of conventional journalists isthat although individual blogs have no warrant of accuracy,the blogosphere as a whole has a better error-correctionmachinery than the conventional media do. The rapidity withwhich vast masses of information are pooled and siftedleaves the conventional media in the dust. Not only are theremillions of blogs, and thousands of bloggers who specialize,but, what is more, readers post comments that augment theblogs, and the information in those comments, as in theblogs themselves, zips around blogland at the speed ofelectronic transmission.This means that corrections in blogs are also disseminatedvirtually instantaneously, whereas when a member of themainstream media catches a mistake, it may take weeks tocommunicate a retraction to the public. This is true not onlyof newspaper retractions - usually printed inconspicuouslyand in any event rarely read, because readers haveforgotten the article being corrected - but also of networktelevision news. It took CBS so long to acknowledge DanRather's mistake because there are so many peopleinvolved in the production and supervision of a program like''60 Minutes II'' who have to be consulted.Richard A. Posner, Bad News, N.Y. Times, July 31, 2005 (book review), at 1, 10.8Agree or disagree with Judge Posner’s characterization of the travails of“conventional media” and the virtues of blogs, it is hard to dispute that the advent of the8See also Mortgage-Specialists, Inc. v. Implode-Explode Heavy Industries, Inc.,999 A.2d 184 (N.H. 2010), where the Supreme Court of New Hampshire was asked todetermine whether a company that operates a website that ranks various businesses inthe mortgage industry and allows visitors who register on the site and create usernamesto post publicly viewable comments about lenders, was a “news organization” entitled toconstitutional protection. In holding that Implode-Explode was a news organizationentitled to constitutional protection, the court explained:Although our cases discussing the newsgathering privilegehave involved traditional news media, such as newspapers,see, e.g., Keene Pub. Corp., 117 N.H. at 960, 380 A.2d 261,we reject Mortgage Specialists' contention that thenewsgathering privilege is inapplicable here becauseImplode is neither an established media entity nor engagedin investigative reporting.Id. at 189.23internet as a medium and the emergence of the blog as a means of free disseminationof news and public comment have been transformative. By some accounts, there are inthe range of 300 million blogs worldwide.9 The variety and quality of these are such thatthe word “blog” itself is an evolving term and concept. The impact of blogs has been sogreat that even terms traditionally well defined and understood in journalism arechanging as journalists increasingly employ the tools and techniques of bloggers – andvice versa. In employing the word “blog,” we consider a site operated by a singleindividual or a small group that has primarily an informational purpose, most commonlyin an area of special interest, knowledge or expertise of the blogger, and which usuallyprovides for public impact or feedback. In that sense, it appears clear that many blogsand bloggers will fall within the broad reach of “media,” and, if accused of defamatorystatements, will qualify as a “media defendant” for purposes of Florida’s defamation lawas discussed above.There are many outstanding blogs on particular topics, managed by persons ofexceptional expertise, to whom we look for the most immediate information on recentdevelopments and on whom we rely for informed explanations of the meaning of thesedevelopments. Other blogs run the gamut of quality of expertise, explanation and evenhanded treatment of their subjects. We are not prepared to say that all blogs and allbloggers would qualify for the protection of section 770.01, Florida Statutes, but weconclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’sprotection as an alternative medium of news and public comment.9See Wikipedia, Blog, http://en.wikipedia/wiki/Blog (as of March 24, 2014, 15:29GMT).24The trial court properly determined that VanVoorhis was entitled to presuit noticeunder section 770.01.The presuit notice requirement of section 770.01 applies toallegedly defamatory statements made in such a public medium the purpose of which isthe free dissemination of news or analytical comment on matters of public concern, assuggested in Ross. The trial court correctly entered judgment in favor of VanVoorhis.AFFIRMED.LAWSON and COHEN, JJ., concur.25