The way that Nick has explained it is that Texas agency law is written so that ultimately all that matters is if a reasonable person would believe that he was an agent.
I didn't listen to what Nick said. But as I understand it, he's a lawyer and far more interested/involved in this issue than I am. So I expect he knows far more about Texas agency law. Nonetheless, My Google-Fu tells me that to prove ostensible agency, Vic will have the burden of proving (1) that a person would hold a reasonable belief that defendant(s) was/were the agent or employee of Funimation; (2) that the belief was generated by some affirmative conduct on the part of Funimation holding defendants out as its employee or agent or knowingly allowing defendants to hold themselves out as such; and (3) that people would justifiably relied upon the appearance and representation of authority that defendant(s) was/were Funimation's employee or agent.
The case I looked at,
Baptist Memorial Hosp. System v. Sampson, 969 S.W.2d 945 (Tex., May 21, 199
, involved a case where a hospital let an independent contractor physician use paper with the hospital's letterhead and the suing patient argued that she reasonably believed based on the fact that the doctor operated out of the hospital, used hospital letterhead, and she was told by someone not to worry. The Court said in that case even if the patient's belief that her doctor was a hospital employee were reasonable that
belief must be based on or generated by some conduct on the part of the Hospital. The Court found that none of these facts raised a scintilla of evidence to support the claim of ostensible agency.
The argument for vicarious liability in this case (assuming that's necessary, others argue no) is that in the
same stream of tweets where they announced Vic's dismissal, other defendants spoke up about confidential knowledge and made defamatory statements about Vic. I would expect Vic to argue that when someone in front of Funimation says things about how they were involved in the investigation and have read the confidential reports and x, y, and z, then Funimation had an affirmative duty to say, "ummm no, they don't speak for me," and that choosing to remain silent is an affirmative act. If I was arguing the other side, I would say that if letting someone write a post-operative report on hospital letterhead and operate in your hospital wasn't enough to create ostensible agency, then the mere fact that someone posted on Twitter in the same thread where Funimation posted also isn't enough.
Which side wins? I don't know. But I do think Vic can't just rely on the mere fact that a reasonable person would believe the other defendants were agents of Funimation. I think Vic has to show that, at a minimum, Funimation actively fostered that belief.
It was a really bad tweet. It should never have been made, and wouldn't have been made non-maliciously.
Let me start by saying that we seem to basically be on the same page and I don't challenge anything you said in the above message (of which I quote a snippet). I just wanted to use your statement to make a point that may already have been made above. When the word malice is used in the defamation context under Texas law, we're not talking malice in the way that normal people might use it.
We're not saying someone said these words, because they hates me and want to get me and have this dark, hard-on against me,
e.g.,
“Actual malice in the defamation context does not include ill will, spite or evil motive, but rather requires ‘sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ ”
Hagler v. Proctor & Gamble Mfg. Co., 884 S.W.2d 771, 772 (Tex.1994). Actual malice includes making a statement knowing it is false or with reckless disregard of whether it is true.
Hagler, 884 S.W.2d at 772 (citing Carr v. Brasher, 776 S.W.2d 567, 571 (Tex.1989)). “Reckless disregard’ is defined as a high degree of awareness of probable falsity, for proof of which the plaintiff must present ‘sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication."
Carr, 776 S.W.2d at 571.
If Vic can prove that the statements made by the other defendants were made as agents of Funimation, proving legal malice becomes much, much easier. If Vic is limited to the two (that I've read) actual tweets by Funimation, Vic has a harder time showing legal malice. I expect that Funimation will say, we believed what we wrote and we did an investigation and the investigation supported our belief.
