PJC Business 2024

PJC 110.20

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

PJC 110.20 Defamation Mitigation Act (Comment)

In 2013 the Texas legislature enacted the Defamation Mitigation Act, Tex. Civ. Prac. & Rem. Code §§ 73.051– . 062. The Act— • requires a plaintiff to seek correction, clarification, or retraction from the publisher before filing suit, unless the defendant has already made a correction, clarification, or retraction; • defines “person” to include corporations and other entities; • applies to all claims for damages arising out of harm to personal reputa tion caused by the false content of a publication; • provides for abatement of suits where no request was received; • sets out specific procedures and time limits for making and responding to the plaintiff’s request, including the time, sufficiency, manner, and adequacy of the correction, clarification, or retraction; • provides for tolling of limitations during the time the parties are commu nicating; • substantially restricts the admissibility of evidence relating to the parties’ relevant communications; • prevents recovery of punitive damages by a person who does not seek relief under the Act within ninety days after receiving knowledge of the publication; and • allows recovery of punitive damages if a correction, clarification, or retraction is made in accordance with the Act only if the publication was made with “actual malice,” a term not defined by the Act. Section 73.058(d) provides that unless there is a reasonable dispute regarding the actual contents of the request for correction, clarification, or retraction, the sufficiency and timeliness of the request is a matter of law for the court, which is required to rule at the earliest appropriate time before trial whether, as a matter of law, the request meets the requirements of the Act. The Act is silent on whether the judge or jury deter mines the “actual contents” of the request and any resulting fact issues relating to the request and response. Accordingly, the Committee offers no recommendation for a jury submission on the issue(s). See Warner Bros. Entertainment, Inc. v. Jones , 611 S.W.3d 1 (Tex. 2020), and Hogan v. Zoanni , 627 S.W.3d 163 (Tex. 2021), for recent discussions and applications of the Act.

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