PJC Business 2024

PJC 110.15

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

subject to liability “only if he knew of the falsity or acted with reckless disregard con cerning it, or if he acted with ill will or intended to interfere in the economic interest of the plaintiff in an unprivileged fashion”; and the plaintiff must always prove pecuniary loss to establish a cause of action for business disparagement. Hurlbut v. Gulf Atlantic Life Insurance Co. , 749 S.W.2d 762, 766 (Tex. 1987). Unlike defamation, where the submission of the different elements depends on many variables and may require sep arate questions, business disparagement lends itself to a global submission. If the alleged disparaging statement involves a product or service rather than a busi ness, the question and instruction should be modified accordingly. Source of instruction. The instruction is based on Prudential Insurance Co. of America v. Financial Review Services, Inc. , 29 S.W.3d 74, 82 (Tex. 2000), which stated that business disparagement requires proof of “publication by the defendant of the disparaging words, falsity, malice, lack of privilege, and special damages.” See also Hurlbut , 749 S.W.2d at 766 . Form of publication. The supreme court has not considered whether a negligent publication will suffice for business disparagement. Given the intentional nature of the business disparagement tort, the Committee suggests that only intentional publication will suffice. Fact vs. opinion. Statements of opinion, fair comment, and rhetorical hyperbole are protected by both the state and federal constitutions. Bentley v. Bunton , 94 S.W.3d 561, 579–80 (Tex. 2002) (citing Milkovich v. Lorain Journal Co. , 497 U.S. 1, 19–21 (1990)). Statements of opinion, fair comment, and rhetorical hyperbole that assert or reasonably imply false statements of fact are not protected. In an appropriate case, the court may be required to submit an issue inquiring about the falsity of a statement of fact essential to the existence of the privilege claimed. Neely v. Wilson , 418 S.W.3d 52, 72 (Tex. 2013). Whether a statement is protected as opinion, fair comment, or rhetori cal hyperbole is generally a question of law for the court. Bentley , 94 S.W.3d at 580; see also MKC Energy Investments, Inc. v. Sheldon , 182 S.W.3d 372, 377 (Tex. App.— Beaumont 2005, no pet.); Delta Air Lines, Inc. v. Norris , 949 S.W.2d 422, 426 (Tex. App.—Waco 1997, writ denied). Business disparagement vs. injurious falsehood. PJC 110.15 is limited to busi ness disparagement. The Texas Supreme Court and courts of appeals have used the terms “business disparagement” and “injurious falsehood” interchangeably. However, these are distinct torts with different elements. Business disparagement requires that the words at issue be disparaging as well as false. Forbes, Inc. v. Granada Biosciences, Inc. , 124 S.W.3d 167, 170 (Tex. 2003); Prudential Insurance Co. of America , 29 S.W.3d at 82; Hurlbut , 749 S.W.2d at 766. This requirement does not appear in the Restatement ’s description of injurious falsehood, which requires only a false statement that is injurious; the statement need not contain any opprobrium. See Restatement (Second) of Torts § 623A (1977) (“One who publishes a false statement harmful to the

398