Has a disgruntled customer posted defamatory statements about your business? It is possible that your business has become a victim of business disparagement. Texas law provides for a claim against a person who publishes false statements about the character of your business. The law requires that this person (or customer) must have acted with malice when they made the statements. The Texas Supreme Court looked at this issue in 1987 in a case titled C. Daniel Hurlbut v. Gulf Atlantic Life Insurance Company, et. al. In that case, the Texas Supreme Court addressed the issue of malice. To sum it up, the Court found that malice occurs when a person does one of the following:
- Knows the statement in question is false;
- Acts with reckless disregard for whether the statement is true;
- Acts with ill will; or
- Intends to interfere with a business’ economic interest.
The law requires that the statements were made without privilege. There are some types of statements that made be made with privilege either (1) an absolute privilege; or (2) a qualified privilege in making the communication. By way of example, governmental officials may have absolute privileges to make statements done in the course of their duties. A qualified privilege generally means that the statement was used in a lawful manner and for a lawful purpose. Some examples of a qualified privilege in previous case law have included the following:
- Statements made in an employee-performance appraisal;
- Statement made by a manager to an employee’s supervisor that the employee was terminated for theft.
Also, the law requires that the statements caused special damages. Special damages require proof of a direct pecuniary (or financial) loss attributable to the false communication. Pecuniary loss may be defined as a monetary loss or a financial loss. Assuming that the customer’s statements were made without privilege and the publication of the customer’s statements caused special damages, then Texas law provides for the recovery of damages. An injured business can recover the following damages: (1) loss of specific sale; (2) loss of credit; (3) loss of business (if the business was completely destroyed); (4) expenses for reasonable necessary measures to counteract a defamatory publication; (5) exemplary (or punitive) damages; (6) prejudgment and post judgment interest; and/or (7) court costs. When determining what punitive damages are, you can look at the “McDonalds” case where punitive damages were awarded to Stella Liebeck in 1992, when she sued McDonalds for injuries she suffered from a cup of hot coffee spilling on her person. In that case, a jury awarded her nearly $3 million in punitive damages.
If you believe that your business has been a victim of business disparagement, call the law firm of Kelly Davis and Associates at 972-434-8009 to schedule an appointment.
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