Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Thursday, September 10, 2009

Defamation & Truth as Defense

The Elements of Defamation Cause of Action in Texas:

The elements of the [Plaintiff's] defamation claim are that: (1) [Defendant] published a statement, (2) the statement was defamatory concerning the [Plaintiff], and (3) [Defendant] acted with negligence regarding the truth of the statement. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

When Is a Statement Actionable as Defamatory? Defamation defined:

A statement is defamatory if the words tend to injure a person's reputation, exposing the person to public hatred, contempt, ridicule, or financial injury. Colson v. Grohman, 24 S.W.3d 414, 421 (Tex. App.--Houston [1st Dist.] 2000, pet. denied).
Defense to Defamation Claim: The Statements Made the Basis of the Lawsuit Are Substantially True
Truth is an affirmative defense to a claim for defamation. See Associated Press v. Cook, 17 S.W.3d 447, 452 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Similarly, a showing of substantial truth in a summary judgment case will defeat a defamation claim. McIlvain v. Jacobs, 794 S.W.2d 14, 15-16 (Tex. 1990). To determine substantial truth, we consider whether the defamatory statement was more damaging to the plaintiff in the mind of the average reader than a true statement would have been. McIlvain, 794 S.W.2d at 16; Barbouti v. Hearst Corp., 927 S.W.2d 37, 65 (Tex. App.--Houston [1st Dist.] 1996, writ denied). This evaluation involves looking at the "gist" of the statement. McIlvain, 794 S.W.2d at 16; KTRK Television v. Felder, 950 S.W.2d 100, 105 (Tex. App.--Houston [14th Dist.] 1997, no writ). If the underlying facts as to the gist of the libelous charge are undisputed, then we can disregard any variance with respect to items of secondary importance and determine substantial truth as a matter of law. McIlvain, 794 S.W.2d at 16; KTRK Television, 950 S.W.2d at 105-06. As stated previously, the truth of a statement is an absolute defense to a claim for defamation. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766 (Tex. 1987). The defense of truth does not require proof that the alleged defamatory statement is literally true in every detail; substantial truth is sufficient. Howell v. Hecht, 821 S.W.2d 627, 631-32 (Tex. App.--Dallas 1991, writ denied). If [Defendant] Pohl established, as a matter of law, the substantial truth of the statements about which the Pedens [Plaintiffs] complain, he is entitled to summary judgment. McIlvain, 794 S.W.2d at 15; Gustafson v. City of Austin, 110 S.W.3d 652, 656 (Tex. App.--Austin 2003, pet. denied).

SOURCE: Appellate opinion in 01-08-00373-CV (9/10/09) 
RELATED CONCEPTS: libel, slander, business disparagement, derogatory statements, reputation and reputational damages, standing in the community, goodwill, tortious interference