Information for Those Considering or Facing a Defamation of Character Claim in Texas

What constitutes defamation in Texas?

In Texas, defamation occurs when a company makes false statements as fact about another party, company, or person.

If, for example, you’re a company owner and someone made false allegations about how dubious your business dealings are, that could greatly damage a company’s reputation, the morale of the people working for it, and likely the productivity of the business.

Statements of defamation can have two different forms. Written (libel) defamation includes social media posts, blog posts, books, potentially pictures in magazines, billboards and online print.

Spoken (slander) defamation includes radio, TV, blogs, politicians, or any other transitory form of communication.

If, for example, a party disparaged a business or title with intent to discourage others to do business with them, also known as business disparagement, a form of defamation.

Defamation suits can result in different types of damages that can affect the subject of the false statements. These damages are generally compensable and can come in a couple different forms.Shortcode

What are common types of damages in defamation matters?

Harm to a company’s reputation is the most common form of defamation suit. This could happen if a business person accused a competitor of being dishonest, unprofessional, rude, or undesirable to work with. This obviously would damage the business of the company, and therefore can be pursued with a defamation suit.

Financial harm is the other main form of damages. It can usually coincide with reputational harm, since your reputation declining probably would result in less business, or at least less frequent business. If business is lost due to statements made by a third party, that constitutes financial harm. Expenses that are acquired while trying to fight the reputation loss would also be potentially recoverable.

The final forms of damages are physical or mental ailments. This could range from health problems such as anxiety, depression, to physical complications. Having to compensate for a false statement being publicized can be a very physically and mentally taxing and can be compensated.

Proving damages in defamation claims

If the dispute is merely over a matter of a nonfactual statement being published and damaging one’s reputation or finances and it is provable that the statement was known to be false and published anyway, a defamation claim could be established and harm would be assumed.

Proving damages to the reputation would require a witness to attest that your reputation had suffered. Evidence that your employer is treating you differently based upon reputation damages could also prove damages, if you were demoted, or fired, or given less significant tasks.

To demonstrate financial harm, documents proving the harm would likely be needed, which could range from bank statements to tax returns.

Demonstrating mental and physical ailments are slightly more difficult. Likely you would need to testify about the severity of the effect that the defamation had on you. Another witness would likely also be needed, perhaps a close friend, family member, or business associate to note the differences in your wellbeing in regards to the defamation.

Those two testimonies would likely not be enough on their own though, a doctor would be needed to show any health concerns that arose from the statements. It would be prudent to keep medical bills to show how much the ailments cost.

Can a website be forced to take down their user’s content? Can an individual be forced to take down their own content?

Both questions focus on the same thing: the court’s power to get published writings taken down. It is a tricky question, since logically they probably should be able to, since certain comments can really damage a company.

On the contrary, if they could remove whatever content they desired so long as it filled some criteria of being damaging to a company or to their assets, it could be viewed as an infringement upon freedom of speech and freedom of the press. In this situation, the courts apply prior restraint.

Prior restraint entails that a court is unable to make an individual, or a company, take down their statements from any medium, they are able to hold the parties liable to damages later down the line if it damages the company’s reputation or assets.

What must be proven in a defamation lawsuit?

Generally, in defamation lawsuits, the burden of proof is put on the plaintiff to prove that the defendant made a false declaration about the plaintiff to a third party, which damaged the reputation of the plaintiff, and the action was either inattentive or deliberate.

It is important to note that a negative statement is not the same as making a defamatory statement.

What is Actual Malice and how can it be proven?

Actual malice entails that the defendant knew a statement about a plaintiff is false, but posted it anyway. Actual malice only affects public figures and public officials. Average citizens are not required to prove actual malice, but only that a statement was inattentive, which is to say the defendant didn’t take reasonable responsibility to make certain the statement was true.

Differentiating Defamation Per Se and Per Quod

Defamation per se and per quod are the two different types of defamation. Defamation per se entails a party making statements that the average citizen would conclude will damage another party’s reputation. This could include accusations of criminal activity, shady business dealings, cheating on his/her spouse, or even things such as prejudice and discrimination in regard to race, age, sex, or disability.

Defamation per quod is occurs when a party says things about a second party the second party finds potentially damaging to their business or reputation, but the average citizen does not see how the statements in question could cause injuries to their business. These statements could include anything that makes an individual or group feel damaged but which the average populace sees no potential future damages.

The Rule of Single Publication

To prevent hundreds, if not thousands, of cases regarding defamation from existing, the rule of single publication ensures that if there is a form of mass media communication defamation, it can only be written up as a single instance of libel or slander, rather than many different counts of it.

Glossary of Terms Relevant to Defamation Matters

  • Per Se: plaintiff doesn’t have to prove injury (i.e.: accusing someone to be criminal hurts reputation)
  • Per Quod: plaintiff does have to prove how statement under review causes material harm since it isn’t obvious to average person
  • Actual Malice: standard of proof public figures must fulfill to win defamation lawsuits. Means defendant knowingly printed, spoke or otherwise communicated false statement of fact bout plaintiff. Reckless disregard for truth could satisfy this
  • Libel: written defamation. Print publications or online stuff or images are libel. If New York Times published false statement as fact, it’s considered libel. Blog comments and social media stuff also libel. Probably also books, or literally anything written
  • Single Publication Rule: diff states have diff standards regarding # of defam counts you can bring based on # of times defamatory statement was reprinted. In jurisdictions that adhere to single publication rule “any form of mass communication or aggregate publication…is a single communication and can give rise to only one action for libel
  • Slander: slander is spoken or transitory defamation. Radio or TV make false statement of fact. Politicians slander more than they speak the truth.