PJC Business 2024

PJC 110.2

D EFAMATION , B USINESS D ISPARAGEMENT & I NVASION OF P RIVACY

PJC 110.2

Question and Instruction on Publication

QUESTION ______ Did Don Davis publish the following: [ insert alleged defamatory matter ]? “Publish” means to communicate orally, in writing, or in print to a person other than Paul Payne who is capable of understanding and does understand the matter communicated. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. “To maintain a defamation cause of action, the plaintiff must prove that the defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private party, regarding the truth of the statement.” WFAA-TV, Inc. v. McLemore , 978 S.W.2d 568, 571 (Tex. 1998); see also In re Lipsky , 460 S.W.3d 579, 593 (Tex. 2015). Use PJC 110.2 to submit the ele ment of publication if it is in dispute. Source of definition. The definition of “publish” is from Exxon Mobil Corp. v. Rincones , 520 S.W.3d 572, 579 (Tex. 2017) (“‘Publication’ occurs if the defamatory statements are communicated orally, in writing, or in print to some third person who is ‘capable of understanding their defamatory import and in such a way that the third per son did so understand.’”) (quoting Austin v. Inet Technologies, Inc. , 118 S.W.3d 491, 496 (Tex. App.—Dallas 2003, no pet.). “Orally, in writing, or in print” includes elec tronic communication, for example, publication on a website or in an email. See, e.g., Glassdoor, Inc. v. Andra Group, LP , 575 S.W.3d 523, 528–30 (Tex. 2019) (treating publication of reviews on the Glassdoor website as publication for purposes of defa mation claim). No compelled self-defamation. In Rincones , the Texas Supreme Court expressly declined to recognize a theory of compelled self-defamation. Rincones , 520 S.W.3d at 581. Compelled self-defamation is the theory that a communication by the plaintiff (rather than the defendant) satisfies the publication requirement when the defendant has put the plaintiff in a situation in which the plaintiff is “compelled” to make that communication—for example, when a defendant former employer tells a plaintiff for mer employee why he was fired and he is then “compelled” to give that reason to new prospective employers when asked why he left his former job.

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