In Van Der Linden, v. Khan, No. 02-16-00374-CV (Tex. App. – Fort Worth, November 9, 2017), the court had a good discussion on defamation per se in the context of a Texas Anti-slapp motion.
Van Der Linden claimed that Khan, a doctor and neighbor, told her that he had given money to the Taliban. Dr. Khan denied ever making the statement. Five months after the alleged statement, Van Der Linden traced down some business associates of Dr. Khan and posted the allegation on their Facebook pages. Khan sued Van Der Linden for
“…tortious interference with contract and with “prospective advantage/business relations” and for “defamation/defamation per se” and sought damages and injunctive relief. “
Van Der Linden filed a Texas anti-slapp motion. The trial court denied the motion and Van Der Linden appealed.
As to the claims except defamation per se, the appeals court ruled that Khan did not meet his burden to show by clear and convincing evidence e.g. evidence that “if not rebutted or contradicted, would establish the fact as a matter of law.” As to the defamation per se claim, the appeals court held that Khan did meet his burden on that issue.
Defamation per se
The court citing In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) stated that
The elements of a defamation action include (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages.
To prove a defamation per se claim, Khan must prove the first three elements, but not the fourth element, as he would be entitled to recover general damages without proof of any specific loss. This is because, as defamation per se, the statements are so obviously harmful that damages, such as mental anguish and loss of reputation, are presumed.
The court ruled that Khan had met his burden because he had denied the statement. Since there were only two people who heard the statement, Khan and Van Der Linden, the denial was sufficient.
The evidence Khan offered was clear and specific—that he had never given money to the Taliban, nor did he ever tell Van Der Linden that he had. And, as Van Der Linden alleges that there were only two parties to this oral communication, Khan could hardly offer more to refute her claim.
There was a dissent to the ruling. The dissenting judge felt that Khan did not meet his burden of offering clear and convincing evidence that he did not make the statement because
if Khan’s statement that he did not tell Van Der Linden that he gave money to the Taliban can suffice as clear and specific evidence to defeat Van Der Linden’s motion to dismiss, then Van Der Linden’s statement that Khan did tell her that he gave money to the Taliban would suffice to meet Van Der Linden’s burden to prove the affirmative defense of truth. Either way, the dissent argues, “the trial court was required to dismiss Khan’s claim.”