PJC Business 2024

D EFAMATION , B USINESS D ISPARAGEMENT & I NVASION OF P RIVACY PJC 110.15

interests of another is subject to liability for pecuniary loss resulting to the other if [describing the malice requirement].”). However, no Texas case has yet recognized a claim for injurious falsehood where the words at issue are not disparaging but are false and, as a result, harm the business of the plaintiff. See, e,g., Delta Air Lines, Inc. , 949 S.W.2d 422 (rejecting business disparagement claim where words were not defama tory); MKC Energy Investments, Inc. , 182 S.W.3d 372 (same). Lack of privilege. While lack of privilege is a required element in business dis paragement, only absolute privilege is relevant. Because a “Yes” answer to PJC 110.15 requires a finding of malice that defeats qualified privileges, qualified privileges are irrelevant in business disparagement cases. See Hurlbut , 749 S.W.2d at 768. The issue of absolute privilege is a legal question that the court will determine as a matter of law before the submission to the jury. See Galveston County Fair & Rodeo, Inc. v. Glover , 880 S.W.2d 112, 120 (Tex. App.—Texarkana 1994), writ denied per curiam , 940 S.W.2d 585 (Tex. 1996); Arant v. Jaffe , 436 S.W.2d 169, 178 (Tex. App.—Dallas 1968, no writ). Standard of proof of defendant’s fault. The common-law standard for business disparagement required a plaintiff to prove the defendant’s “malice” in making the statement. As noted above, the malice standard at common law could be met by proof of knowing falsity, reckless disregard of falsity, or acting with ill will or intent to inter fere with the plaintiff’s interests. Hurlbut , 749 S.W.2d at 766; Restatement (Second) of Torts § 623A (1977). With the constitutionalization of speech-related torts when they involve speech on matters of public concern, there is some uncertainty regarding the standard for malice. When the object of the allegedly disparaging speech is a public figure such as a large, publicly traded company, the U.S. Supreme Court precedents point to a constitutional requirement that the plaintiff must prove “actual malice”—knowing falsity or reckless disregard for the truth—to prevail against a media defendant. See Bose Corp. v. Con sumers Union of United States, Inc. , 466 U.S. 485, 511–14 (1984). Such proof clearly meets some of the alternative proofs of malice—knowing falsity—under the common law. See Forbes, Inc. , 124 S.W.3d 167, 171, in which the Texas Supreme Court assumed, without deciding, “that the New York Times actual-malice standard applies in a public figure’s business disparagement suit against a media defendant.” Where the matter discussed is of public concern but the plaintiff is not a public offi cial or public figure, the Texas Supreme Court has not spoken on the standard of fault in business disparagement cases. It is not clear whether the common-law standard or some different standard will apply when the party allegedly disparaged is not a public figure, the defendant is not a media outlet, or the disparagement does not involve a matter of public concern. Proof of knowing falsity or reckless disregard for the truth will always suffice, since those were ways to prove malice under the common law. See, e.g., Prudential Insurance Co.

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