DEFAMATION PER SE: NEW TEXAS SUPREME COURT CASE ADDRESSING PROFESSIONAL ISSUES

           There are two types of actionable defamation under Texas law: defamation per se and defamation per quod. These Latin terms can be confusing, but put simply, they involve different levels of proof for each Plaintiff. A claim for defamation per quod means that a statement is defamatory due to circumstances. While the statement is not defamatory when viewed on its face, due to circumstances, the statement can be considered defamatory. A Plaintiff will have to not only prove the defamatory nature of the statement, but also the amount of damages caused by the publication of the statement.

           Defamation per se means a statement that is defamation “by itself.” A person claiming defamation per se does not have to prove that they suffered damage to their reputation or any monetary loss. The statement speaks for itself—it is defamatory, and thus, the plaintiff is entitled to damages. In Texas cases involving defamation per se, “our law presumes that statements that are defamatory per se injure the victim’s reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish.” Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002).

          The law presumes certain categories of statements are defamatory per se, including statements that (1) unambiguously charge a crime, dishonesty, fraud, rascality, or general depravity or (2) that are falsehoods that injure one in his office, business, profession, or occupation. Main v. Royall, 348 S.W.3d 318, 390 (Tex. App.—Dallas 2011, no pet.). It is up to Texas courts’ interpretation of what statements are considered defamatory per se.

          Recently, in the case of Hancock v. Variyam, 2013 WL 2150468 (Tex. 2013), the court analyzed whether statements that a doctor lacked veracity and dealt in half truths were defamatory per se. The court held that they were not defamatory per se, due to the fact that they did not injure the doctor in his profession as a physician. The court noted that the inquiry was not whether a reputation is necessary for a profession; rather, the proper inquiry is whether a defamatory statement accuses a professional of lacking a peculiar or unique skill that is necessary for the proper conduct of the profession. Id. at *6. The court held that the statements were not defamatory per se, and as such, the doctor would need to specifically prove his damages.

          The Hancock case proves interesting because it shows that Texas courts will scrutinize statements carefully to see if they fall within the rubric of requirements for defamation per se. This is not an automatic characterization of defamation, but instead, requires careful analysis

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