Liability does not attach, unless the wrongful detention is accompanied by actual damage to the property or deprives the owner of its use for a substantial period of time. See Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770 (1945); Restatement (Second) of Torts § 218 (1965). Even in the absence of damages, a trespass has occurred which is important in determining the legal relations between the parties.
Quaker argued below that Doe had no action for defamation because its statements were truthful and not defamatory as a matter of law and because Doe herself published the statements to third parties. SmithKline asserted below that it was not liable for defamation because its statements were absolutely privileged as truthful or, alternatively, its statements were conditionally privileged because SmithKline owed Quaker a duty under their contract to report the test results truthfully. For an action to exist for libel or slander, the statement must be published to third parties. Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 771 (1945); Houston Belt Terminal Ry. Co. v. Wherry, 548 S.W.2d 743, 751 (Tex.Civ.App. — Houston [1st Dist.] 1976, writ ref'd n.r.e.), cert. denied, 434 U.S. 962, 98 S.Ct. 497, 54 L.Ed.2d 447 (1977). In this case, Doe alleges that this publication occurred when she felt compelled to explain the withdrawal of Quaker's offer to other potential employers.
Texas follows this general rule, and the courts have applied it when a defendant has given defamatory information in response to a plaintiff's general authorization or request for comments. "[I]f the publication of which the plaintiff complains was consented to, authorized, invited or procured by the plaintiff, he cannot recover for injuries sustained by reason of the publication." Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 772 (1945) (plaintiff asked for or consented to defendant physician's writing of letter concerning her treatment). The Lyle court based this ruling on its earlier statement of the same principle.
Under Texas law, "it is clear that one can consent to defamation, and that consent creates an absolute bar to a defamation suit." Smith v. Holley, 827 S.W.2d 433, 439-40 (Tex. App.-San Antonio, 1992, writ denied); see also Lyle v. Waddle, 188 S.W. 2d 770, 772 (Tex. 1945); Oliphint v. Richards, 167 S.W.3d 513, 516 (Tex. App.-Houston [14 Dist.], 2005, pet. denied); Rouch v. Continental Airlines, Inc., 70 S.W.3d 170, 172-73 (Tex. App.-San Antonio, 2001, pet. denied). The scope of a plaintiff's consent, however, "does not exceed what is reasonable in light of the language or circumstances that created it."
Because there was no publication to a third-party, the discussion between Plaintiff and English cannot support a libel claim. Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 772 (1945). Furthermore, Defendant correctly noted that internal corporate communication is not actionable when the alleged slander was solicited by Plaintiff.
In sum, Salinas does not claim damages that are recoverable. See Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 773 (1945). As already noted, this case does not involve a trespass against a possessory interest, which does not require actual injury to be actionable and may result in an award of nominal damages.
A negligent communication amounts to a publication just as effectively as an intentional communication. The Ake case honored the holding in Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770 (1945), which holds that a plaintiff cannot recover for injuries sustained by reason of a publication which he authorized, invited or procured, but at the same time held that under the circumstances the Lyle rule was inapplicable. Those circumstances were reflected in the quoted language immediately above, as taken from the text in Ake, 606 S.W.2d at 701.
The parties have argued extensively in their briefs the question whether compelled self-publication defamation is a viable cause of action in Texas. Although the general rule in Texas is that a plaintiff cannot complain of a defamation that he "consented to, authorized, invited or procured," Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 772 (1945), some Texas appellate courts have recognized a limited exception when the plaintiff is compelled to repeat the statement. Chasewood Construction Co. v. Rico, 696 S.W.2d 439 (Tex.App. — San Antonio 1985, writ ref'd n.r.e.); First State Bank of Corpus Christi v. Ake, 606 S.W.2d 696 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.); see also Purcell v. Seguin State Bank and Trust Co., 999 F.2d 950, 959 (5th Cir. 1993) (noting that "Texas courts . . . recognize the narrow exception of self-compelled defamation").
In the controlling Texas law, a plaintiff cannot recover for injuries from publication of defamatory material if the plaintiff consented to, authorized, invited, or procured the publication. Lyle v. Waddle, 188 S.W.2d 770 (Tex. 1945). The Texas courts, however, recognize the narrow exception of self-compelled defamation. For example, in Chasewood Construction Co. v. Rico, 696 S.W.2d 439 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.), the court held that self-compelled defamation occurred.
Liability does not attach unless the wrongful detention is accompanied by actual damage to the property or deprives the owner of its use for a substantial period of time. Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770 (1945).