[Note by TruCounsel editor: The tort of “business disparagement” is essentially defamation per se directed at a business and where the plaintiff is a business. The primary controlling case in Nevada is Clark County School Dist. v. Virtual Educ. Software, Inc., 125 Nev. 374, 213 P.3d 496, 504 (Nev. 2009).]
[Interpreted by TruCounsel editor – not an exact quote]
- False and disparaging statement (also called injurious falsehood),
- That interferes with the plaintiff’s business and is aimed at the business’s goods or services, and is
- Conveyed by the unprivileged publication by the defendant, with
- Malice, and causing
- Special damages, which are presumed.
[It is probable that the special damages element is unecessary and presumed as it is in defamation per se cases.]
Notably, the principal differences between defamation per se and business disparagement concern the elements of intent and damages. As opposed to defamation, which merely requires some evidence of fault amounting to at least negligence, business disparagement requires something more, namely, malice. Malice is proven when the plaintiff can show either that the defendant published the disparaging statement with the intent to cause harm to the plaintiffs pecuniary interests, or the defendant published a disparaging remark knowing its falsity or with reckless disregard for its truth.Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 722, 57 P.3d 82, 92-93 (2002); Hurlbut, 749 S.W.2d at 766; Restatement (Second) of Torts § 623A (1977).
Clark County Sch. Dist. v. Virtual Educ. Software, Inc., ___ Nev. ___, 213 P.3d 496, 504-05 (Nev.2009).
A claim for defamation per se primarily serves to protect the personal reputation of an individual. 53 C.J.S. Libel and Slander; Injurious Falsehood § 312 (2005); Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 766 (Tex.1987). But where communications concern the goods or services provided by a business entity, a plaintiff generally seeks to redress injury to economic interests. 53 C.J.S. Libel and Slander; Injurious Falsehood § 312 (2005). This distinction is the basis for the difference between an action for defamation per se and an action for business disparagement. Id. Unlike defamation per se, communications constituting business disparagement are not directed at an individual’s personal reputation; rather, they are injurious falsehoods that interfere with the plaintiff’s business and are aimed at the business’s goods or services. Aetna Cas. & Sur. Co. v. Centennial Ins. Co., 838 F.2d 346, 351 (9th Cir.1988). Thus, if a statement accuses an individual of personal misconduct in his or her business or attacks the individual’s business reputation, the claim may be one for defamation per se; however, if the statement is directed towards the quality of the individual’s product or *386 services, the claim is one for business disparagement. 53 C.J.S. Libel and Slander; Injurious Falsehood § 312 (2005).