Proving Malice In Texas Defamation Cases

In the defamation context, a statement is made with actual malice when the statement is made with knowledge of its falsity, or with reckless disregard for the truth. Id. Negligence, failure to investigate the truth or falsity of the statements prior to publication, and failure to act as a reasonable prudent person are insufficient to support a finding of malice. See: East Texas Medical Center Cancer Institute v. Anderson, 991 S.W.2d 55, 60 (Tex. App.--Tyler 1998, no pet.); Schauer v. Memorial Care Systems, 856 S.W.2d 437, 450 (Tex. App.--Hous. [1st Dist.] 1993, no writ); Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 921-22 (Tex. App.--Corpus Christi 1991, writ dism'd w.o.j.); Campbell v. Salazar, 960 S.W.2d 719, 728 (Tex. App.--El Paso 1997, writ denied)(failure to investigate before accusing plaintiff contributed to malice showing). Libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt, ridicule, or financial injury; or to impeach any person's honesty, integrity, virtue, or reputation, or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury. TEX. CIV. PRAC. & REM. CODE ANN. 73.001 (1997); Cain v. Hearst Corp. 878 S.W.2d 577, 580 (Tex. 1994). Slander, the spoken form of defamation, is not codified by statute, but has been recognized at common law to be "a defamatory statement orally published to a third party without justification or excuse." Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). An employer has a conditional or qualified privilege that attaches to communications made in the course of an investigation following a report of employee wrongdoing. Id. The privilege applies only as long as communications pass only to persons having an interest or duty in the matter to which the communications relate. Id. However, proof that a statement was motivated by actual malice existing at the time of publication defeats the privilege. Id.