On May 26, 2017, the Texas Supreme Court addressed whether Texas recognizes a defamation claim for compelled self-publication.  The Texas Supreme Court, joining a number of other states, including Connecticut, Massachusetts, Hawaii, Tennessee, Iowa, Pennsylvania and New York, rejected a claim of compelled self-defamation in Texas.  Other states, such as California and Colorado, recognize a claim for compelled self-defamation.

Generally speaking, a defamation claim includes the following elements:

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, in some cases.

The issue regarding “compelled self-publication” relates to the first element.  Specifically, does the publication have to be made by the defendant or can it be made by the plaintiff.

In Exxon Mobile, the plaintiff, Gilberto Rincones, was a catalyst technician and was required to take and pass a drug test.  Mr. Rincones failed a random drug test when he tested positive for marijuana use.  Mr. Rincones left the company and ultimately filed a lawsuit alleging various causes of action, including a cause of action for defamation based on the notion of compelled self-publication.  Specifically, he alleged he would have to report to future employers that he had been terminated for failing a drug test.  The Texas Supreme Court rejected the self-defamation claim and “expressly decline[d] to recognize a theory of compelled self-defamation in Texas.”

The Court offered various rationales for its decision.  The Court observed that a plaintiff cannot recover for injuries as a result of a publication if the plaintiff consented to, authorized, invited or procured that publication.  The Court also explained that recognizing compelled self-defamation “would risk discouraging plaintiffs from mitigating damages to their own reputations.”  The Court also “fear[ed] that accepting the compelled self-defamation doctrine would unacceptably impinge on the at-will employment doctrine” and found the claim is incompatible with Texas’ at-will employment system.  Lastly, the Court observed that “recognizing compelled self-defamation could also stifle workplace communication by chill[ing] honest evaluation and communication about employee performance, as employers strive to protect themselves from defamation claims by adopting policies of providing only or providing only ‘name, rank and serial number’ references.”

Bottom Line

Although Texas and a number of other states have rejected the “compelled self-publication” claim in connection with defamation, other states have recognized it.  Employers, both giving and receiving information about employees, should obtain the consent of the employee before obtaining or giving information that might be categorized as defamatory.

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