TWO DISTINCT TORTS: BUSINESS DISPARAGEMENT AND "CHARACTER ASSASSINATION" (DEFAMATION)
Business disparagement and defamation are similar in that both involve harm from the publication of false information. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 (Tex. 2014). The respective torts, however, serve different interests.
Whereas “defamation actions chiefly serve to protect the personal reputation of an injured party,  a business disparagement claim protects economic interests.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003). Business disparagement or “injurious falsehood applies to derogatory publications about the plaintiff’s economic or commercial interests.” 3 DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE LAW OF TORTS § 656, at 615 (2d ed. 2011).
The tort does not seek to redress dignitary harms to the business owner, but rather redresses aspersions cast on the business’s commercial product or activity that diminishes those interests. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766–67 (Tex. 1987).
A corporation or other business entity that asserts a claim for defamation may assert an additional or alternative claim for business disparagement if it seeks to recover economic damages for injury to the business. Burbage v. Burbage, 447 S.W.3d 249, 261 n.6 (Tex. 2014). Impugning one’s reputation is possible without disparaging its commercial interests and vice versa. Depending on the circumstances, then, a plaintiff may have a claim for defamation, or for business disparagement, or both.
ELEMENTS OF BIZ DISPARAGEMENT CAUSE OF ACTION
“To prevail on a business disparagement claim, a plaintiff must establish that (1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff.” Forbes, 124 S.W.3d at 170 (citing Hurlbut, 749 S.W.2d at 766).
SOURCE: TEXAS SUPREME COURT - 13-0928 - IN RE STEVEN LIPSKY [Opinion by Justice Divine in pdf] - 4/24/2015
CITATION: In re Lipsky, No. 13-0928, ___ S.W.3d ___ (Tex. 2015)
COA OPINION BELOW: In re Lipsky, 411 S.W.3d 530 (Tex.App.-Fort Worth 2013, orig. proceeding)