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Robert Writt v. Shell Oil Company and Shell International, E&P, Inc

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DISSENTING OPINION

For more than one hundred years, Texas defamation law has artfully balanced two fundamental interests: a citizen’s right to his good name and a citizen’s right to free speech. Communications made in the context of judicial proceedings invoke two additional and equally important interests: a citizen’s right to petition for redress and the administration of justice. When the judicial proceedings are criminal in nature, a citizen’s interests in the deterrence and prosecution of crime are added to the balance. In the defamation equilibrium, we safeguard these fundamental interests through privileges.

With respect to criminal prosecutions, our jurisprudence has reached a careful accord–we afford a qualified privilege to statements made when a private citizen approaches a governmental authority with criminal allegations, but we afford absolute privilege to communications made to prosecuting governmental authorities during or in contemplation of criminal proceedings. When a citizen, corporate or otherwise, is approached by a law enforcement agency for cooperation in an ongoing investigation of a contemplated criminal prosecution, the administration of justice requires an absolute privilege, which encourages the citizen’s full and unreserved cooperation in the agency’s information-gathering efforts, unhampered by fear of retaliatory lawsuits. Shell’s cooperation with the DOJ falls into this category, and the trial court correctly afforded it absolute privilege. By reaching a contrary holding, the Court frustrates the kind of cooperation and self-reporting that is often vital to the DOJ’s prevention and prosecution of corporate misconduct in international business dealings. I therefore respectfully dissent.

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