Texas law uses the phrase "defamation of character" to cover incidents in which someone makes a false statement to injure another person's reputation or imply the person has bad character. Defamation includes libel, in which such statements are written, and slander, in which such statements are spoken. Texas has two types of defamation actions: defamation per se and defamation per quod. Each have different levels of proof burdens.
Elements of Defamation in Texas
To prove defamation of character in Texas, a plaintiff must demonstrate that the defendant made a false statement to a third party about the plaintiff with the required degree of fault. The amount of fault required differs depending on whether the statement is about a public official, a public figure or a private individual.
Public and Private Figures
In Texas, a person who is a "public figure," a "limited public figure" or a "public official" must prove that the defendant acted with "actual malice" when making a defamatory statement. "Actual malice" is defined as making a defamatory statement while knowing it's false or with reckless disregard as to whether it's false or true.
Texas courts have found that public figures or public officials include, for example, law enforcement agents, specialist employees of Texas Child Protective Services, employees of the U.S. Securities and Exchange Commission, and a court-appointed child psychologist who had the authority to decide what visitation was appropriate. Public figures and public officials must prove actual malice in all allegedly defamatory statements.
A "limited public figure" is a person who is usually a private individual, but who seeks the limelight for a particular purpose or issue. Limited public figures in past Texas cases have included a candidate for city council who deliberately entered debate on a contentious issue and a hacker group called Legion of Doom that sought publicity in a computer-security controversy. Limited public figures must prove actual malice regarding statements that are made about the public issue they appear in.
A "private figure" is a person who has no public involvement in government or any particular controversy. Private figures do not need to prove the defendant made the defamatory statements with actual malice. It is enough to prove the statements were merely negligent.
Actual Malice Required for Public Figures
Texas law uses the phrase "actual malice" to describe the heightened standard that public officials or public figures must meet to prove a statement is defamatory. "Actual malice" does not actually mean the defendant made the statements cruelly. Rather, it means the defendant made the statement with the full knowledge that it was false.
Negligence, on the other hand, means the defendant made the statements without taking "reasonable care" to check whether or not they were false. Actions that amount to "reasonable care" may include asking the defendant if the statement is true or asking someone who would know the facts of the situation if the statement is true, as well as other actions depending on the facts of the particular case.
Defamation Per Se
Texas law recognizes that some statements are so likely to injure a person's reputation that they are assumed to be defamatory when made, and the plaintiff is not required to prove that his reputation was injured by the statements. This type of defamation is known as "defamation per se." Statements that are defamation per se include: statements that attack a person's professional reputation, character, or standing; statements that allege an unmarried person is engaging in sexual activity; statements that allege a person has a sexually transmitted disease and statements that allege a person has committed a "crime of moral turpitude," such as child abuse.
Defamation Per Quod
Statements that do not fall into one of these four categories are known as "defamation per quod." A defamation plaintiff has to prove to the court that a defamation per quod statement damaged his reputation in some way. Unlike defamation per se where the plaintiff only needs to prove the false statement was made, defamation per quod requires proof that damages exist. For example, if the person lost his job as a result of a false claim that he stole company funds, there would be damages resulting from the defamation.
Defenses to a Defamation Suit
Proving that the statement was true is an absolute defense to defamation. If the statement was presented as an opinion or speculation, not a fact or a statement based on fact, it may not be defamation. Statements made out of privilege in court, by legislators while in the legislature and by judges while on the bench usually cannot be defamatory, even if they are "outrageous."
Persons who comment on a controversy in the news are usually not liable for defamation, even if their comments turn out to contradict reality.
Poor reputation is another defense. Even if a statement is defamatory, a defendant may demonstrate it did not harm the plaintiff's reputation by showing that the plaintiff's reputation was so bad already that the statements could not possibly have made it worse.
A third party who passes on a defamatory statement without knowing its content is not liable for defamation; this is called innocent dissemination of information. For instance, the U.S. Postal Service is not liable merely for delivering a sealed letter that contains defamatory statements.