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What is the Difference between Defamation and a Disparagement Claim?

Bradford T. Laney, Texas Litigation Attorney

Business Disparagement is different than defamation in regards to the right it protects. Defamation protects the personal reputation of the plaintiff, while business disparagement protects the economic interests of the plaintiff. The focus on telling the difference is determining what the statements were about. If the statements were about you personally (for example, Brad’s too tall), then defamation is the correct cause of action. If the statements about something that hurts your pocket book (for example, Brad’s berry farm can’t grow berries), then business disparagement is the cause of action you’re looking for.

To win a case for defamation, you’ll need to be able to prove the following by a preponderance of the evidence (51%):

  1. The defendant published a statement of fact;
  2. The statement referred to the plaintiff;
  3. The statement was defamatory;
  4. The statement was false;
  5. With regard to the truth of the statement, the defendant was:
    • (a) acting with malice,
    • (b)negligent, or
    • (c)liable without regard to fault; and
  6. The plaintiff suffered pecuniary injury.

To win a case for Business Disparagement, you’ll need to be able to prove the following by a preponderance of the evidence (51%):

  1. The Defendant published disparaging words about the plaintiff’s economic interests;
  2. The words were false;
  3. The defendant published the words with malice;
  4. The defendant published the words without privilege; and
  5. The publication caused special damages.

If you can prove all the elements for defamation or business disparagement, you may want to hire an attorney to recover your damages.

But, before you decide to pull the trigger, I tell clients all the time that you need to figure out some solid damages. Unfortunately, bad things are said about people and businesses all the time. Only those that result in actual damage are are worthy of going after. Some good examples of actual damages include: (1) losing your job, (2) losing a promotion, (3) losing a customer account, (3) losing the sale of your business, or (4) being forced to sell your business at a lower value.

Brad is a Texas litigation attorney, who has successfully litigated defamation and business disparagement claims in Texas state and federal courts. If you need help figuring out if you have a claim or defending against someone that has sued you, please do not hesitate to give Brad a call or email (713-297-1200, blaney@raleybowick.com).

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