Texas Law and Defamation

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Jason B. Freeman

Jason B. Freeman

Managing Member

214.984.3410
jason@freemanlaw.com

Mr. Freeman is the founding member of Freeman Law, PLLC. He is a dual-credentialed attorney-CPA, author, law professor, and trial attorney.

Mr. Freeman has been named by Chambers & Partners as among the leading tax and litigation attorneys in the United States and to U.S. News and World Report’s Best Lawyers in America list. He is a former recipient of the American Bar Association’s “On the Rise – Top 40 Young Lawyers” in America award. Mr. Freeman was named the “Leading Tax Controversy Litigation Attorney of the Year” for the State of Texas for 2019 and 2020 by AI.

Mr. Freeman has been recognized multiple times by D Magazine, a D Magazine Partner service, as one of the Best Lawyers in Dallas, and as a Super Lawyer by Super Lawyers, a Thomson Reuters service. He has previously been recognized by Super Lawyers as a Top 100 Up-And-Coming Attorney in Texas.

Mr. Freeman currently serves as the chairman of the Texas Society of CPAs (TXCPA). He is a former chairman of the Dallas Society of CPAs (TXCPA-Dallas). Mr. Freeman also served multiple terms as the President of the North Texas chapter of the American Academy of Attorney-CPAs. He has been previously recognized as the Young CPA of the Year in the State of Texas (an award given to only one CPA in the state of Texas under 40).

To most, personal and business reputations are important.  Therefore, it may not surprise you to learn that the law protects such reputations through a cause of action known as defamation.  Under Texas law, written defamation, referred to as “libel,” is actionable by statute.  Conversely, oral defamation, referred to as “slander,” is actionable under common law.  This Insight provides additional background on the Texas cause of action of defamation.

Elements of Defamation

Generally, defamation means “the invasion of a person’s interest in her reputation and good name.”  Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex. 2013).  To prove a successful defamation claim, the plaintiff must show the following:  (1) the defendant published a false statement; (2) that defamed the plaintiff; (3) with the requisite degree of fault regarding the statement’s truth; and (4) damages, unless the statement constitutes defamation per seBedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017).

The Defendant Published a False Statement

Not all untrue communications are actionable.  Specifically, the law recognizes that an assertion of a subjective opinion does not necessarily represent a statement of fact and therefore will not support a defamation claim.  See California Comm. Inv. Grp., Inc. v. Harrington, 2020 WL 3820907 (Tex. App.—Dallas 2020).

Moreover, to support a claim for defamation, the plaintiff must show that the false statement was actually published to a third party.  For these purposes, a statement is published when it is communicated to a third party who is capable of understanding its defamatory meaning and moreover in such a way that the person did, in fact, understand its defamatory meaning.  Thomas-Smith v. Mackin, 238 S.W.3d 503, 507 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

The False Statement Defamed the Plaintiff

In addition, the plaintiff must show that the false statement defamed the plaintiff.  A statement is defamatory if when considered in the appropriate context, “a person of ordinary intelligence would interpret it in a way that tends to injure the subject’s reputation and thereby expose the subject to public hatred, contempt, or ridicule, or financial injury, or to impeach the subject’s honesty, integrity, virtue, or reputation.  Neyland v. Thompson, 2015 WL 1612155 (Tex. App.—Austin 2015).  By contrast, a communication that is merely unflattering, abusive, annoying, irksome, or embarrassing,” in light of the circumstances, “or that only hurts a person’s feelings, is not actionable.”  MVS Int’l Corp. v. Int’l Advert Sols., LLC, 545 S.W.3d 180, 202 (Tex. App.—El Paso 2017, no pet.).

The Requisite Degree of Fault

The plaintiff must also prove a requisite degree of fault regarding publication of the statement.  Generally, the quantum of fault depends on whether the plaintiff is a public figure or a private individual.

If the plaintiff is a public figure, the plaintiff must show that the defendant acted with malice.  Belcher v. King, 2020 WL 4726593 (Tex. App.—Austin 2020).  A statement is made with malice if it is made “with knowledge that it was false or with reckless disregard of whether it was false or not.”  WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 573-74 (Tex. 1998).  Generally, actual malice focuses “on the defamation defendant’s attitude toward the truth of what it reported” whereas reckless disregard requires the plaintiff to prove that the defendant “entertained serious doubts as to the truth of his publication.”  Id.  Reckless disregard is a subjective standard that focuses on the defendant’s conduct and state of mind.  Bentley v. Bunton, 94 S.W.3d 561, 591 (Tex. 2002).  And a showing of reckless disregard requires more than mere negligence or failure to use reasonably prudent conduct—there must be evidence that the defendant had “significant doubt about the truth of his statements at the time they are made.”  Bentley, 94 S.W.3d at 591, 596.

The standard is lower if the plaintiff is a private individual.  Specifically, in these instances, the plaintiff must show only negligence.  Id.; see also WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).  Negligence is established upon a showing that the publisher knew or should have known that the defamatory statement was false.  HDG, Ltd. v. Blaschke, 2020 WL 1809140 (Tex. App.—Houston [14th Dist.] Apr. 9, 2020).

Damages

Generally, with any cause of action under Texas law, a plaintiff must show damages.  However, in defamation cases, if the false and defamatory statement at issue is considered defamatory per se, the plaintiff may be awarded nominal damages without proof of actual injury.  This is because mental anguish and loss of reputation are presumed based on the statement alone.  Brady v. Klentzman, 515 S.W.3d 878, 886 (Tex. 2017).  Examples of statements that are defamatory per se include those accusing someone of a crime or those that tend to injure a person in his office, profession, or occupation.  In re Lipsky, 460 S.W.3d at 596.

If the false and defamatory statement is not considered defamatory per se (referred to in Texas as defamation per quod), then the plaintiff must show actual damages for loss of reputation, mental anguish, or economic loss.  For defamation per quod, a plaintiff must carry the burden of proof on both the existence and amount of damages.  Hancock, 400 S.W.3d at 63.  And before a plaintiff can recover general damages in an action for defamation per quod, the plaintiff must prove special damages.  See Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 626 (Tex. 2018).

Statute of Limitations

By statute, a one-year statute of limitations applies to actions for defamation.  See Tex. Civ. Prac. & Rem. Code § 16.002(a).  For these purposes, an action for defamation accrues when the defamatory statement is published.  See San Antonio Credit Union v. O’Connor, 115 S.W.3d 82, 96 (Tex. App.—San Antonio 2003, pet. denied).  However, the discovery rule can apply to an action for defamation when a defamatory statement is “inherently undiscoverable” or not a matter of public knowledge.  Velocity Databank, Inc. v. Shell Offshore, Inc., 456 S.W.3d 605, 609 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); Newson v. Brod, 89 S.W.3d 732, 736 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

A defamatory statement is “inherently undiscoverable” where, by its nature, it is unlikely to be discovered within the prescribed limitations period despite due diligence.  S.V. v. R.V., 933 S.W.2d 1, 7 (1996).  If this rule applies, the limitations period begins to run when the plaintiff learns, or through the exercise of reasonable diligence should have learned, of the existence of the defamatory statement.  Childs v. Haussecker, 974 S.W.2d 31, 37 (Tex. 1998).

Conclusion

Defamation claims may arise from any written or oral publication (e.g., television, newspaper, internet, etc.).

 

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