Note: This page covers information specific to Texas. For general information concerning defamation, see the Defamation Law section of this guide.
Elements of Defamation
In Texas, the elements of a defamation claim are
- publication of a statement;
- that was defamatory concerning the plaintiff;
- with the requisite degree of fault.
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). The elements of a defamation claim are for the most part similar to the elements discussed in the general Defamation Law section, with the following clarifications:
Public and Private Figures
Texas law defines when a plaintiff is a public official, all-purpose public figure, and limited-purpose public figure in more-or-less the way described in the general Actual Malice and Negligence section. Some examples of individuals deemed to be public officials or all-purpose public figures by Texas courts include:
- law enforcement officers including a county sheriff, a deputy sheriff, and an undercover narcotics agent with the Texas Department of Public Safety;
- a Texas Child Protective Services specialist in charge of investigating cases of alleged child abuse and neglect and providing services for the children involved;
- an assistant regional administrator of a branch office of the United States Securities and Exchange Commission; and
- a court-appointed child psychologist in a child custody case who had the authority to determine visitation rights.
Some examples of individuals deemed to be limited-purpose public figures by Texas courts include:
- a candidate for city counsel, because he thrust himself into the middle of a public controversy;
- a former special counsel for a court of inquiry investigating alleged irregularities in county fund management;
- a zoologist who actively participated in a controversy involving his work with kinkajous by appearing on television, giving interviews to magazines, and orchestrating a letter-writing campaign;
- a broadcast news reporter who hosted a segment that regularly appeared on television;
- an abortion clinic protester who regularly appeared on a public street near the entrance to the clinic;
- a group of hackers called Legion of Doom who sought publicity in a controversy over computer security.
Actual Malice and Negligence
In Texas, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statement. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statement was false or recklessly disregarding its falsity. See the general page on actual malice and negligence for details on these standards.
Privileges and Defenses
Texas courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. Although the Texas Supreme Court has not ruled on the issue, many lower courts in Texas have recognized a privilege similar to the neutral reportage privilege.
The CMLP has not identified any cases in Texas that recognize the wire service defense.
There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act.
Fair Report Privilege
In Texas, the fair report privilege protects a "fair, true, and impartial account" of various official proceedings and meetings, including:
- court proceedings, including reports of the contents of pleadings filed with the court;
- executive or legislative proceedings, including proceedings of legislative committees;
- proceedings before a managing board of an educational or charity institution supported from public funds;
- proceedings of the governing body of a city or town, of a county commissioners court, or of a public school board; and
- public meetings on matters of public concern.
One court has applied the fair report privilege to reporting based on a police department press release. See Freedom Commc'n v. Sotelo, 2006 WL 1644602 (Tex. App. June 15, 2006).
A plaintiff may overcome the fair report privilege by showing that the defendant acted with actual malice.
Neutral Reportage Privilege
The Texas Supreme Court has neither recognized or rejected the neutral reportage privilege. Many lower courts have recognized a similar privilege, without calling it "neutral reportage." Under the rule set forth in these cases, when the media reports on an accusation made by a third party, it can defend itself by showing that the accusation was in fact made and under investigation, rather than by showing that the underlying allegation was substantially true. See Dolcefino v. Turner, 987 S.W.2d 100, 109 (Tex. App. 1998). This privilege extends to investigations and accusations made by government and non-government actors and organizations. Proof of actual malice defeats this privilege.
Wire Service Defense
Statute of Limitations for Defamation
Texas has a one (1) year statute of limitations for defamation. See Tex. Civ. Prac. & Rem. Code sec. 16.002.
Texas has adopted the single publication rule. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.
Texas state courts have not yet considered whether the single publication rule applies to postings on the Internet, but a federal appeals court applying Texas law recently adopted it in the Internet context. See Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137 (5th Cir. 2007). See also Hamad v. Center for the Study of Popular Culture, No. A-06-CA-285-SS (W.D. Tex. June 26, 2006) (adopting single pubication rule for Internet publications).