Defamation
A false statement of fact, published to someone other than the person it concerns, that injures that person's reputation. Texas calls the written form libel and the spoken form slander. Suit must be filed within one year, and if no written request for correction has been made, the defendant can have the suit paused until one is served.
In Texas, defamation is a false statement of fact, published to a third party, that harms the plaintiff's reputation and was made with the required degree of fault. Suit for libel or slander must be filed within one year after the claim accrues under Tex. Civ. Prac. & Rem. Code § 16.002.
Defamation is the umbrella tort for reputational injury caused by a false statement. Texas defines libel by statute as defamation "expressed in written or other graphic form" that tends to injure a living person's reputation, impeach the person's honesty or integrity, or expose the person to financial injury (Tex. Civ. Prac. & Rem. Code § 73.001). Slander, the spoken form, is governed by common law. Both share the same one-year limitations period.
The Supreme Court of Texas lists four elements: publication of a false statement of fact to a third party, that was defamatory concerning the plaintiff, made with the requisite degree of fault, and, in some cases, damages (In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015)). A private individual must prove negligence. A public official or public figure must prove actual malice, meaning the speaker knew the statement was false or acted with reckless disregard for its truth.
- Governing law
- Common law, plus Tex. Civ. Prac. & Rem. Code ch. 73 for libel
- Deadline to sue
- One year after the claim accrues, (§ 16.002(a))
- Correction request
- Timely if made within the limitations period, but needed within 90 days of learning of the publication to keep exemplary damages, (§ 73.055(b), (c))
- Fault standard
- Negligence for a private plaintiff, actual malice for a public figure, (Lipsky, 460 S.W.3d at 593)
- Complete defense
- Truth of the statement, (§ 73.005(a))
Defamation per se and proof of damages
A plaintiff must plead and prove damages unless the statement is defamatory per se. Per se statements are so obviously harmful that general damages, such as loss of reputation and mental anguish, are presumed. Even then Texas presumes only nominal damages. Any larger award of general damages has to be supported by evidence (Lipsky, 460 S.W.3d at 593). Special damages, the specific economic losses, are never presumed.
A statement that injures someone in an office, profession or occupation can be defamatory per se, but only when it attacks a skill or quality peculiar to that line of work. In Bedford v. Spassoff a Facebook post faulting a youth baseball club over a coach's affair did not qualify, because it said nothing about the skills needed to run a baseball club. Without per se status, the club had to prove actual damages and could not.
The request for correction, clarification or retraction
The Defamation Mitigation Act, (Tex. Civ. Prac. & Rem. Code §§ 73.051-73.062), applies to every claim for reputational harm caused by the false content of a publication, whether written, broadcast, spoken or electronic. A person may maintain a defamation action only after making a timely and sufficient request for a correction, clarification or retraction, or after the defendant has made one (§ 73.055(a)). The request is timely if made within the limitations period.
A shorter clock governs damages. If the request is not made within 90 days after the plaintiff learns of the publication, exemplary damages are lost (§ 73.055(c)). A sufficient request is served on the publisher, written and signed, identifies the statement with particularity, and states its defamatory meaning (§ 73.055(d)). A defendant who did not receive one may file a plea in abatement within 30 days after filing its original answer. If the plea is verified and the plaintiff does not controvert it by affidavit, the suit is abated until 60 days after a request is served (§ 73.062).
Businesses as plaintiffs
Corporations and other entities have reputations of their own and can sue for defamation in their own names. An entity that has lost money because of a false statement may also plead business disparagement, which protects economic interests and requires proof of special damages. The two claims can be pleaded together, with defamation as the vehicle for non-economic harm such as injury to reputation, which is not recoverable as disparagement (Lipsky, 460 S.W.3d 579).
Elements of a Texas defamation claim
- The defendant published a false statement of fact to a third party.
- The statement was defamatory concerning the plaintiff.
- The defendant acted with the required degree of fault: negligence for a private individual, actual malice for a public official or public figure.
- The plaintiff suffered damages, unless the statement is defamatory per se.
What is the difference between libel and slander in Texas?
Libel is written or otherwise fixed in graphic form, and slander is spoken. Texas defines libel by statute in Tex. Civ. Prac. & Rem. Code § 73.001, while slander remains a common-law claim. The elements are the same for both, and so is the deadline: suit for libel or slander must be filed within one year after the claim accrues (§ 16.002). The correction-request rules of the Defamation Mitigation Act cover spoken statements as well as written ones.
How hard is it to prove defamation in Texas?
It is harder than many plaintiffs expect, chiefly because of the Texas Citizens Participation Act. When a statement concerns a matter of public concern, the defendant can move to dismiss early, and the plaintiff must then produce clear and specific evidence of each element (§ 27.005(c)). General claims of lost business are not enough. Evidence of when, where and what was said, why it was defamatory, and how it caused harm should be enough to resist the motion (Lipsky, 460 S.W.3d at 591).
How much does it cost to sue for defamation in Texas?
There is no standard figure. Cost depends on the number of statements, the discovery needed and whether the case is tried. One statutory risk stands out. If a defendant wins dismissal under the Texas Citizens Participation Act, the court must award the defendant court costs and reasonable attorney's fees and may add sanctions against the plaintiff (Tex. Civ. Prac. & Rem. Code § 27.009(a)). A plaintiff can end up paying both sides' lawyers.
Who cannot be sued for defamation?
Protection attaches to particular statements, not to classes of people. Federal law bars treating a website or other interactive computer service as the publisher of content another person supplied (47 U.S.C. § 230(c)(1)); the person who wrote the post can still be sued. In Texas, a newspaper or periodical's fair, true and impartial account of a judicial, legislative or official proceeding is privileged (Tex. Civ. Prac. & Rem. Code § 73.002). A broadcaster answers for a guest's on-air statement only if it failed to use due care (§ 73.004).
Defamation disputes reach businesses from two directions: a competitor, former employee or customer says something false about the company, or the company (or someone speaking for it) is accused of saying something false about another. Online reviews sit in the middle. Texas applies the TCPA to claims over consumer reviews and ratings of businesses even when the commercial-speech exemption would otherwise apply (§ 27.010(b)(2)), so a suit over a negative review is likely to meet an early motion to dismiss and the fee exposure that comes with it. The one-year deadline and the 90-day correction-request window run from different starting points, and both can expire while the parties are still exchanging letters.
- Deadlines first: suit for libel or slander must be filed within one year after the claim accrues (§ 16.002), and a written request for correction, clarification or retraction made within 90 days after learning of the publication preserves a claim for exemplary damages (§ 73.055(c)).
- A dated copy of the statement, where and when it appeared and who saw it is commonly gathered early, since the TCPA can require that detail early in the case, while discovery is suspended.
- The request for correction must be served on the publisher, written, signed, identify the statement with particularity and state its defamatory meaning (§ 73.055(d)); the publisher may ask for evidence of falsity within 30 days (§ 73.056).
- A defendant sued over speech on a matter of public concern can file a TCPA motion to dismiss within 60 days after service, which suspends discovery and shifts fees if granted (§§ 27.003, 27.009).
- A Texas lawyer who handles defamation and business tort litigation can evaluate the statement, the fault standard and the deadlines that apply.