To have a cause of action for defamation, there must be:
- Defamatory statement
- Published to a third party
- With fault amounting to at least negligence
- Actionability irrespective of special damages or damages caused by the defamatory statement
LIBEL & SLANDER
When talking about defamation, you may hear the terms “libel” and “slander” mentioned. Defamation is a legal action that includes libel and slander, with libel being a written statement and slander being an oral statement.
ELEMENT OF “FALSE STATEMENT OF A DEFAMATORY FACT”
Defamation must include a statement of a defamatory fact. The law requires that the statement be one of fact and not just one of opinion. When determining whether the statement is fact or opinion, courts have held that one cannot avoid a defamation case by always beginning with “in my opinion.” Courts will analyze the content, tone, and context to determine 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 working through this opinion vs. fact issue, Colorado courts consider many circumstances, including context, audience, and so on.
Colorado Courts have held that a statement could be defamatory even if the subject of the statement were not specifically named. In other words, if a reasonable listener (or reader) could understand that the defamatory statement referred to the specific person or business, then a claim of defamation could arise.
ELEMENT OF PUBLICATION
Publication simply means that the defamatory statement was communicated in some form to a third person. The “publication” element does not require that the defamatory statement be “published” for the world to see; rather, the statement simply must be said or written in some form to a third party—that is, a person other than the subject of the defamatory statement. With today’s technology, publication has expanded from the traditional word of mouth, newspaper, and magazines to internet-based statements.
ELEMENT OF DAMAGES
For most cases, there must be direct damage caused by the defamatory statement to have a successful lawsuit. Colorado allows limited exceptions to the requirement of damages. In general, no damages need to be proven if the defamatory statement concerns another committing a crime, having a vile disease, engaging in serious sexual misconduct, or otherwise defames another in their business/profession by exposing them to public hatred.
Other than these limited exceptions, a plaintiff must prove specific monetary losses that resulted from the defamatory statement.
WHO CAN BE DEFAMED?
In Colorado, those that can be defamed are (1) any living person or (2) a corporation, partnership, or other business entity. In today’s world of communication, defaming a business has become more common.
PUBLIC FIGURES OR MATTERS OF PUBLIC INTEREST
Public figures are the subject of almost constant attack. Today, more than ever, people are constantly expressing their opinions about public figures (think tabloids, social media posts, news articles). However, the law recognizes that public figures are entitled to fewer protections than private individuals because they hold themselves out to the public. Therefore, the law requires that defamatory statements against public figures be made maliciously or recklessly with respect to the truth. Statements made maliciously basically means that the defamatory statement was made while knowing it was false or that the person making the statement had serious doubts as to the truth of the statement but made it anyway. Public figures must prove by clear and convincing evidence that the statement was made maliciously or recklessly with regard to the truth. This is a higher burden than most civil cases require, which is preponderance of the evidence (also known as “more likely than not”).
Public officials (politicians, judges, police officers, etc.) are considered public figures for the purposes of a defamation action. Courts have long recognized that these jobs have such importance that there is an overall public interest in their jobs.
Public figures also include not only the famous, but also those people who have put themselves (either voluntarily or involuntarily) into the forefront a particular issue of public interest.
COMMON DEFENSES TO DEFAMATION ACTION
The first amendment right to freedom of speech protects the ability of individuals to speak freely, particularly on issues of public interest or concern. A statement that expresses a belief or opinion and that does not imply a fact (or cannot be reasonably understood as a statement of fact) is constitutionally protected. 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 not only Colorado law but also constitutional law.
You may have heard the statement “truth is a defense.” In the case of defamation, this statement is true. If the defamatory statement is the actual truth, there is no defamation claim.
Absolute privilege is a also a defense in defamation cases. Absolutely privileged statements include statements made in judicial proceedings or legislative proceedings.
There are limited situations that allow for a qualified privilege that protects some statements from a defamation suit. These are situations where the defamatory statement was made by a person with a legitimate interest or duty to persons having a correspondent interest or duty in promoting a legitimate individual, group, or public interest. This called “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.
Your attorney must be experienced in defamation cases. In certain situations, if the defendant does not properly plead their defenses (such as absolute privilege or qualified privilege) at the very beginning of a case, he or she could lose the right to assert the defense.
Burnham Law has experienced defamation litigation attorneys. 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.