PJC Business 2024

PJC 110.7

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

PJC 110.7

Actual Malice in Cases of Qualified Privilege (Comment)

PJC 110.7 discusses some situations in which qualified privilege is a defense to def amation. Other examples are described in the Comments to PJC 110.4. The common law provides a qualified privilege against defamation liability when “communication is made in good faith and the author, the recipient or a third person, or one of their family members, has an interest that is sufficiently affected by the com munication.” Burbage v. Burbage , 447 S.W.3d 249, 254 (Tex. 2014) (citation omitted). When the facts are undisputed and the language used in the publication is not ambigu ous, the question whether a publication is protected by a qualified privilege is one of law for the court. Burbage , 447 S.W.3d at 254 (citing Fitzjarrald v. Panhandle Pub lishing Co. , 228 S.W.2d 499, 505 (Tex. 1950)). Once the qualified privilege is shown to exist, the burden is on the plaintiff to show the privilege is lost. Privilege is an affir mative defense in the nature of confession and avoidance; and, except where the plain tiff’s petition shows on its face that the alleged defamatory publication is protected by a privilege, the defendant has the burden of pleading and proving that the publication is privileged. Denton Publishing Co. v. Boyd , 460 S.W.2d 881, 884 (Tex. 1970). The plaintiff may overcome the qualified privilege only by establishing that the publication was made with actual malice. Randall’s Food Markets, Inc. v. Johnson , 891 S.W.2d 640, 646 (Tex. 1995); Dun & Bradstreet, Inc. v. O’Neil , 456 S.W.2d 896, 900–901 (Tex. 1970). It is unclear whether the plaintiff’s burden of proof to defeat the privilege by showing actual malice is by a preponderance of the evidence or by clear and convincing evidence. Compare Hagler v. Proctor & Gamble Manufacturing Co. , 884 S.W.2d 771 (Tex. 1994) (actual malice in qualified privilege context requires knowing falsity or reckless disregard for truth, citing cases indicating that such matters must be proved by clear and convincing evidence), with Ellis County State Bank v. Keever , 888 S.W.2d 790, 792–93 n.5 (Tex. 1994) (stating that preponderance of the evidence standard is firmly established in Texas civil cases; a more onerous burden is required only in extraordinary circumstances, such as when mandated by the U.S. Supreme Court). If the court concludes that actual malice provides the standard, the question in PJC 110.6 would be appropriate. If the court concludes that a preponder ance burden of proof applies, the question in PJC 110.6 should be modified accord ingly. Whether a qualified privilege exists can depend on whether the publication of the alleged defamation was limited to certain persons. See Randall’s Food Markets, Inc. , 891 S.W.2d at 646 (“The privilege remains intact as long as communications pass only to persons having an interest or duty in the matter to which the communications relate.”). If the evidence raises a fact issue whether the defendant communicated the statement to persons not covered by the privilege, the court should submit that issue to the jury. Mitre v. Brooks Fashion Stores, Inc. , 840 S.W.2d 612, 619 (Tex. App.—Cor-

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