What Constitutes Defamation of Character in Texas?

Under Texas law, defamation of character describes incidents in which a party makes a false statement to injure another's reputation or business. Defamation can be written or spoken and may be obvious to the average citizen or need more context to be considered defamatory.

In a Texas defamation case, the plaintiff (party being defamed) must show that the defendant (party making the alleged defamatory statement) acted with negligence or with “actual malice.”

In Texas, defamation occurs when a party makes false statements regarding private individuals or companies. Defamation in the Lone Star State exists in two forms:

• ‌Written‌ (libel): This type of defamation may come in the form of publications (books and magazines), billboards, social media or blog posts, or other online content.
• ‌Spoken‌ (slander): This type of defamation comes from TV, radio, politicians or other types of oral communication that is transitory.

Texas considers defamation a civil matter. The victim, or plaintiff, has the right to bring legal action against the defamer, or defendant, for any injury to their reputation that the false statement caused.

Defamation per se and defamation per quod are two types of defamation. A defamation per se statement is considered defamatory on its face—this type of statement is immediately presumed to be harmful by the average person. Examples include accusations of criminality, questionable business practices, adultery, and prejudice or discrimination.

Defamation per quod is a false statement that needs more proof as to the damage it caused—this statement is not considered defamatory at face value. Defamation per quod is evaluated in the context of additional facts.

Defamation per quod statements can make a party feel that their reputation has been damaged, but a reasonable person may not see this without more information.

In a Texas defamation lawsuit, a plaintiff must show that the defendant:

• Made a false statement of fact regarding the plaintiff (truth is a defense to charge of defamation.)
• Communicated or published the false statement to a third party.
• Made a statement that injured the person's reputation while they were still alive, or otherwise "blackened the memory of the dead.”

In Texas, a private individual who sues for defamation needs to show only that the defamer was negligent in making the false statement. However, public figures, such as CEOs, politicians or celebrities must prove more than just negligence when filing a defamation claim—they must show that the defamer used "actual malice.”

Texas defines "actual malice" in defamation as the publication of a false statement while acting with reckless disregard for its truth or falsity. Actual malice takes into account the defamer’s state of mind at the time the statement was published, whereas negligence does not.

With actual malice, the plaintiff must prove that the defendant knew they were making a false statement at the time they made it or had serious doubts as to its veracity.

The court likely will examine the steps the defendant took in researching, fact checking and editing their work to find evidence of the defendant's state of mind at the time of the statement’s publication.

According to Texas law, business disparagement is similar to defamation. False statements made in a business disparagement case are those that cause harm to a business’ economic interests.

To prove a legal action for business disparagement, the plaintiff must establish that the:

• Defendant published words of disparagement against the plaintiff that are more than simply criticism. The plaintiff must prove that the defamer intended to interfere with the business or its economic interest.
• Defendant acted with actual malice if the plaintiff is a public figure or negligence if a private individual.
• False statement was published without privilege, meaning the party making it did not have a privilege that would protect them from liability, such as making a statement under oath during a regulatory or judicial proceeding; making the statement as a legislator during a legislative debate; or making a statement as media to benefit the public interest.
• Plaintiff must show proof of special damages, which are pecuniary (monetary) losses suffered due to the false statement. The false statement must have not only caused special damages, but Texas also requires the plaintiff to show that these losses are greater than the attorney's fees spent on bringing the business disparagement claim.

A plaintiff who wants to file a defamation claim for slander or libel in Texas has up to one year to do so. In most instances, this period starts to run when the defendant first makes the allegedly defamatory statement.

However, there are some instances in which the defamatory statement is not public knowledge or is difficult to find. In these cases, the statute of limitations starts when the plaintiff discovers the existence of the defamatory statement.

Texas starts the limitations period when the publishing of the defamatory statement occurs and doesn't reset it if the statement is republished or repeated, unless it is altered significantly or repackaged for a new audience.

For example, if a periodical publishes a false statement, the statute of limitations begins on the magazine's publishing date, but if the statement is republished in a book for a different audience, a new statute of limitations begins on the book’s publishing date.