The Case Of The Defamed Doctor – SLAPP’ing Down Defamation Cases In Texas

by Gray Reed & McGraw
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Special thanks to guest blogger Alex Fuller for this month’s post.

            Who steals my purse steals trash; ’tis something, nothing;

            ‘Twas mine, ’tis his, and has been slave to thousands;

            But he that filches from me my good name

            Robs me of that which not enriches him,

            And makes me poor indeed.

                        -Othello Act 3, Scene 3

While on a date to the Laugh Factory Comedy Club, Terry Tellsall busted a gut laughing and was rushed to Texas General Hospital. Incensed by the treatment and bedside manner he received from Dr. B.D. Manner, Terry barraged his friend Cindy Cussin with texts detailing Dr. Manner’s inability to remember critical surgical procedures and his comments that “with a belly that size, you’re lucky you only busted one gut.” The next day, Terry posted his accusations on a popular doctor-rating website.

Luckily for Terry, the attending Nurse Nancy smelled Dr. Manner’s whiskey breath, heard his comments, and thankfully reminded him of the right procedure. However, Terry’s friend Cindy Cussin was Dr. Manner’s cousin and forwarded Terry’s texts to him. When Dr. Manner read the texts and received the early morning Google Alert with Terry’s website posts, he immediately instructed Able Attorney, Esq., to file a defamation lawsuit against Terry. Is Terry liable for libel?

Probably not. Truth is still a defense to any claim of verbal (slander) or written (libel) defamation. Better yet, the 2011 Texas Anti-SLAPP statute makes it harder for defamation lawsuits to be used as a bullying tactic.

Defamation in the Internet Age

Both the United States[1] and Texas[2] Constitutions broadly guarantee the right of free speech. However, the tort of defamation creates an exception to these guarantees. While defamation law can be complex and fact intensive, very generally a defamatory statement made about a private person is one that (1) is a statement of fact about that person, (2) is published to a third party, (3) injures their reputation, (4) is false, and (5) causes injury to that person. Truth, of course, is always a defense to a defamation suit.

Public statements that make others look bad will often draw threatened or actual defamation lawsuits. Frequently their purpose is to harass or punish the speaker with an aim to preventing them from making further public statements. To address these harassing lawsuits, in 2011 the Texas Legislature passed the Anti-SLAPP – Strategic Lawsuits Against Public Participation (SLAPPs) law.[3]

SLAPP’ing Some Sense Into Defamation Law.

The Legislature noted that the Internet has “created a permanent and searchable record of public participation” – in other words, every word an Internet user posts is both permanent and findable! – and that “abuses of the legal system, aimed at silencing these citizens, have also grown.”[4] The Anti-SLAPP statute gives a defendant like Terry the ability, within 60 days of being served with a defamation lawsuit, to file a motion to dismiss the suit if the statements were made about a matter of public concern. Dr. Manner must then present prima facie evidence of each of the elements of his lawsuit and if he can’t, the suit will be dismissed and Dr. Manner will have to pay Terry’s attorneys’ fees. Not only that, but if Terry can prove her defense of truth by present by a preponderance of the evidence at the hearing on the motion, she will win even if Dr. Manner presents his prima facie evidence!

So Can Terry SLAPP Dr. Manner?

Yes and no. Although few courts have weighed in on the Anti-SLAPP statute, those that have uniformly and broadly apply it to “matters of public concern,” including “health and safety” and “good[s], product[s] and service[s] in the marketplace.” This includes online reviews of businesses and professionals.[5] However, one court has held that in order to be a matter of public concern, a statement must be made in a public forum and not to a restricted audience.[6]

Therefore, Terry can file a motion to dismiss Dr. Manner’s claims that he defamed him on the Internet, and if he is able to provide the court with Nurse Nancy’s corroborating testimony, may well win. But, he might not be able to move to dismiss Dr. Manner’s claims regarding the private statements he made to his friends.

Tilting the Scales in Your Favor.

First, don’t talk trash! It’s hard to get in trouble for statements you didn’t make – or those a plaintiff can’t prove you made. The written word, forever memorialized on the internet, just makes a lawyer’s lawsuit easier.

Second, tell the truth! The worst statement isn’t defamatory if it is factually true. While this might not save you from a defamation lawsuit, it can help keep you from having to pay a judgment.

And finally – if you do have to talk true trash, make sure you do it in public. Then you might have a chance to SLAPP a plaintiff before your case has hardly started.

See prior Tilting articles – Keeping a Good Name: Protecting Yourself from Internet Defamation (2012), SLAPP Happy – Can a Business Sue a Customer who Gave a Bad Online Review? (2011), Defamation Primer (2009), and When is a Tweet Not So Sweet? (2009)

[1]               U.S. Const. Amend. I.

[2]               Tex. Const. Art. I, § 8.

[3]               Ch. 27, Tex. Civ. Prac. & Rem. Code.

[4]               Legislative history cited in Whisenhunt v. Lippincott, 416 S.W.3d 689 (Tex. App.—Texarkana 2013).

[5]               See BBB of Metropolitan Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299 (Tex.App—Dallas 2013); Avila v. Larrea, 394 S.W.3d 646 (Tex.App.—Dallas 2012).  

[6]               Whisenhunt v. Lippincott, 416 S.W.3d 689 (Tex. App.—Texarkana 2013).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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