PJC Business 2024

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

PJC 110.3

(“[C]ourts sometimes determine that a statement is capable of at least one defamatory and at least one non-defamatory meaning. When that occurs, ‘it is for the jury to deter mine whether the defamatory sense was the one conveyed.’”) (quoting W. Page Kee ton, Prosser and Keeton on Torts § 111, at 782 (5th ed. 1984)). Pleading requirement for extrinsic defamation. Extrinsic defamation must be specifically pleaded. That is, when a plaintiff relies on the context of “‘other facts and circumstances sufficiently expressed before’ or otherwise known to the reader” or lis tener to argue that a statement has a defamatory meaning, the plaintiff must plead the specific extrinsic facts and circumstances. Tatum , 554 S.W.3d at 626 (citing Billington v. Houston Fire & Casualty Insurance Co. , 226 S.W.2d 494, 497 (Tex. App.—Fort Worth 1950, no writ)). Conditioning. If publication is not in dispute and PJC 110.2 is not submitted, the conditioning language should be deleted and the question should be modified as fol lows: Was the following defamatory concerning Paul Payne : [ insert alleged defamatory matter ]? Source of definition and instruction. The definition of “defamatory” is taken from Tex. Civ. Prac. & Rem. Code §73.001 and Turner v. KTRK Television, Inc. , 38 S.W.3d 103, 115 (Tex. 2000). Although section 73.001 includes the phrase “blacken the memory of the dead,” that phrase has not been included in light of authority hold ing that the legislature did not intend merely by codifying a definition to create by implication a cause of action for defaming the dead. See Renfro Drug Co. v. Lawson , 160 S.W.2d 246, 249 (Tex. 1942); see also Channel 4, KGBT v. Briggs , 759 S.W.2d 939, 940 n.1 (Tex. 1988) (“While one cannot bring a cause of action for the defama tion of a person already dead, one who is alive while he was defamed and later dies, has a cause of action for defamation which survives his death.”). The instruction on construing the statement is based on Tatum , 554 S.W.3d at 625– 32 (laying out separate tests for extrinsic defamation, textual explicit defamation, tex tual defamation by implication from an entire publication’s gist, and textual defama tion by implication from a distinct part of a publication). Meaning. A potentially defamatory meaning can be found in two ways: either in the publication considered alone (“textual defamation”); or in the publication consid ered in light of other evidence (“extrinsic defamation”). Tatum , 554 S.W.3d at 626. Textual defamation “arises from the statement’s text without reference to any extrinsic evidence.” Tatum , 554 S.W.3d at 626. Extrinsic defamation “ does require reference to extrinsic circumstances.” Tatum , 554 S.W.3d at 626. “Extrinsic defamation occurs when a statement whose textual meaning is innocent becomes defamatory when con sidered in light of other facts and circumstances sufficiently expressed before or other wise known to the reader.” Tatum , 554 S.W.3d at 626 (citations omitted).

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