Yes, a Colorado business can sue for defamation. The elements for business defamation are the same whether the plaintiff is an individual or a business.
To have a cause of action for defamation, there must be (1) a publication of (2) a false statement of defamatory fact that (3) results in damages.
When talking about defamation, you may hear the terms “libel” and “slander” mentioned. Libel and slander are treated similarly for purposes of a defamation lawsuit, with libel being a written statement and slander being an oral statement.
ELEMENT OF PUBLICATION
In reference to defamation, publication means that the defamatory statement was communicated in some form to a third person. Therefore, it is not required that the defamatory statement be “published” for the world to see; it simply must be said or written to a third party. With today’s technology, the definition of publication has expanded from the traditional word of mouth, newspapers, and magazines; to internet-based statements like social media posts and online reviews.
ELEMENT OF “FALSE STATEMENT OF A DEFAMATORY FACT”
Individuals have opinions, and expressing opinions is not defamation. Today’s digital world gives everyone access to opine on a business. Individuals can easily post on social media or provide a review of a product/business. These posts and reviews are being used more and more by individuals in making their consumer choices.
For defamation, the law requires that the statement be one of fact and not just one of opinion. In determining whether a statement is one of fact vs. opinion, the Courts look at the content, tone, and context of whether the statement can reasonably be understood as stating a provable fact. It can be difficult for the judge or jury to determine if a statement falls under “opinion” or “fact.”
When it comes to business defamation, determining whether a statement is one of opinion or fact is difficult and includes nuances in the law. Having a business attorney who has knowledge of the historical case law as well as current court trends is vital. As technology is continually changing, your attorney must have the ability to apply historical law to today’s technology.
A statement expressing a belief or an opinion that does not imply a fact (or what can reasonably be understood as a statement of fact) is constitutionally protected. An example of an opinion statement is: “this restaurant serves disgusting food.” While an example of a statement of fact is: “this restaurant has mice all over.” It is common for freedom of speech to be asserted as a defense in defamation cases. When there is a freedom of speech defense, the attorneys must be well versed in Colorado law and federal constitutional law.
Also, the statement must be false. You may have heard the statement “truth is a defense.” In the case of defamation, this is accurate. If the defamatory statement is the actual truth, the defamation action losses.
ELEMENT OF DAMAGES
In most cases, there must be direct damage caused by the defamatory statement to have a successful lawsuit. The defamatory statement must harm the business’s reputation, deter others from doing business, and/or lowers the business’ standing in the community.
Colorado allows limited exceptions to the requirement of damages. For example, no damages need to be proven if the defamatory statement defames a business by exposing it to public hatred.
ABSOLUTE PRIVILEGE
Absolute privilege is a complete defense in all defamation cases. The following statements are protected and cannot be the basis of a defamation lawsuit, statements made in judicial proceedings, legislative proceedings, executive communications, consent by the plaintiff, statutory confidential relationships, and where there is a legal requirement to publish defamatory matter.
QUALIFIED PRIVILEGE
There are limited situations that allow for a qualified privilege. Businesses cannot bring defamation lawsuits against people for leaving a critical but fair review. This privilege is “qualified” because if the person is entitled to the qualified privilege, the plaintiff can still win the defamation case if they can prove the statement was made maliciously or recklessly.
Burnham Law has experienced defamation litigation attorneys. Do not let your business be harmed by defamation. If you are the victim of a defamatory statement or need expert representation against a claim of defamation, please contact us at (303) 990-5308.