DEFAMATION IN COLORADO: ELEMENTS AND LIABILITY

WHAT IS DEFAMATION?

While the First Amendment to the United States Constitution guarantees “freedom of speech,” individuals and entities must be wary that their statements, in certain circumstances, may be the subject of a civil defamation lawsuit. In Colorado, “[a] statement is defamatory of a person if it tends to harm the person’s reputation by lowering the person in the estimation of at least a substantial and respectable minority of the community.” [1] However, proving a civil case for defamation is much more difficult than meets the eye.

Defamation claims in Colorado can be quite convoluted, as the requirements for recovery vary depending on the parties and particular circumstances around the alleged defamatory speech.

TYPES OF DEFAMATION: SLANDER AND LIBEL

Importantly, there is no such thing as a simply a “defamation claim” in Colorado. Rather, “defamation” is an umbrella term, encompassing two specific types that are actionable under Colorado law. The two types of defamation are slander and libel. To make matters more complicated, a plaintiff may choose between seeking damages for slander/libel per se versus slander/libel per quod.

1.  SLANDER AND SLANDER PER SE

What is Slander? Slander occurs when a defamatory statement is made orally, such as in conversations or interviews. Slander per se requires that the statement “impute to,” or associate with, the plaintiff the commission of a crime, the affliction of a loathsome disease, unchastity, or have defamed the plaintiff in the plaintiff’s trade, business, profession, or office.[2] Further, slander per se is actionable only where no extrinsic evidence is necessary to show how it might be understood as defaming the plaintiff.[3] Lastly, for a statement to be slanderous per se, it must unequivocally expose the person defamed to public hatred or contempt.[4]

2.  LIBEL AND LIBEL PER SE

What is Libel? A defamatory statement is libel as opposed to slander if it is written, broadcast, or communicated in some other form having a permanent nature, such as a picture or published article.[5] Such a statement is libelous per se if no extrinsic evidence or innuendo is necessary to show either its defamatory nature or that it was about the plaintiff.[6]

3. DEFAMATION PER QUOD

On the other hand, where a publication is reasonably capable of being construed as either defamatory or not defamatory, and brings about special damages, it will be actionable only under per quod, and not per se.[7]

CAUSES OF ACTION IN DEFAMATION CASES

The elements of liability for slander/libel per se and slander/libel per quod vary depending on who the plaintiff (injured party) is, and what the allegedly slanderous/libelous statement is about.

In Colorado, potential causes of action that fall under the defamation umbrella include:

1. Libel or slander per se – where the plaintiff is a public official or public person or, if a private person, the statement pertained to a matter of public interest or general concern.[8]
2. Libel or slander per quod – where the plaintiff is a public official or public person or, if a private person, the statement pertained to a matter of public interest or general concern.[9]
3. Libel or slander per se – in a private matter where plaintiff is a private person.[10]
4. Libel or slander per quod – in a private matter where plaintiff is a private person.[11]

WHO IS A “PUBLIC PERSON” FOR THE PURPOSES OF DEFAMATION?

A plaintiff is a public official or public person “by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention.”[12] A few examples of public officials/persons are:

• Candidates for office;
• Public high school teachers;
• State/Federal judges;
• Well-known businessmen; and
• Celebrities.

WHAT ARE “MATTERS OF PUBLIC INTEREST OR GENERAL CONCERN”?

Whether an alleged slanderous/libelous statement pertains “to a matter of public interest or general concern” is determined by the court on a case-by case basis. A few examples of statements meeting this standard in Colorado are:

• A newscast of a story detailing the life of a bomb squad officer who was seriously injured in an explosion;[13]
• An article reporting widespread and ongoing real estate development schemes of questionable propriety (where potential buyers are members of the general public);[14]
• Statements made to public employees charged with investigating child abuse;[15]
• An article about a retailer’s business practices that affected many consumers and involved a consumer affairs agency;[16]
• A newscast involving public controversy of racially discriminatory policies and implying plaintiff had been previously arrested;[17] and
• Allegations that a person attempted to evade handicapped accessibility requirements of a city building code.[18]

HOW DO I PROVE MY DEFAMATION CLAIMS?

Libel or slander per se – where the plaintiff is a public official or public person or, if a private person, the statement pertained to a matter of public interest or general concern.[19]

• First, the following must be proven by a preponderance of the evidence:
  • The defendant published or caused to be published the statement; and
  • The statement caused the plaintiff actual damage.
• Further, the following must be established by clear and convincing evidence:
  • The substance or gist of the statement was false at the time it was published; and
  • At the time of publication, the defendant knew that the statement was false or the defendant made the statement with reckless disregard as to whether it was false.

Libel or slander per quod – where the plaintiff is a public official or public person or, if a private person, the statement pertained to a matter of public interest or general concern.[20]

• First, the following must be proven by a preponderance of the evidence:
  • The defendant published or caused to be published the statement; and
  • One or more readers/listeners/viewers/recipients of the publication understood it to be defamatory; and
  • The publication of the statement caused special damages to the plaintiff.
• Further, the following must be established by clear and convincing evidence:
  • The statement was about the plaintiff;
  • The substance or gist of the statement was false at the time it was published; and
  • At the time of publication, the defendant knew that the statement was false or the defendant made the statement with reckless disregard as to whether it was false or not.

Libel or slander per se – in a private matter where plaintiff is a private person.[21]

• In order to recover, the plaintiff must prove by a preponderance of the evidence that the defendant published or caused to be published the defamatory statement.

Libel or slander per quod – in a private matter where plaintiff is a private person.[22]

• In order to recover, the following elements must be proven by a preponderance of the evidence:
  • The defendant published or caused to be published the statement;
  • The statement was defamatory;
  • The statement was about the plaintiff; and
  • The publication of the statement caused special damages to the plaintiff.

POTENTIAL DEFENSES TO DEFAMATION CLAIMS IN COLORADO

Defenses to allegations of defamation recognized under Colorado law include:

• Substantial truth: Applies if the statement published by the defendant was substantially true.[23]
• Absolute privilege, available to the following if concerning a statement made in the course of or relating to their role:
  • A judge or other officers performing a judicial function;
  • An attorney, party, witness, or juror;
  • Legislators;
  • Witnesses testifying at or persons providing communication preliminary to a legislative proceeding;
  • Certain executive and administrative officers;
  • One who is required by law to publish the defamatory matter; and
  • Persons in a statutory confidential relationship.[24]
• Conditional/qualified privilege, available on certain occasions including:
  • Protection of the publisher’s interest;
  • Protection of the interest of the recipient or a third person;
  • Common interest;
  • Family relationships;
  • Communication to one who may act in the public interest; and
  • Communication by an inferior state officer required or permitted in the performance of his official duties.[25]
• Privilege to report official or public meeting proceedings, which applies if:
  • The defendant was reporting on an official action, proceeding, or meeting open to the public and dealing with a matter of public concern; and
  • The report was substantially accurate and complete as to the matter being reported or it was a fair summary.[26]
• Consent, which applies if:
  • The plaintiff by words, conduct, or both, expressly or impliedly authorized or consented to the publication of the statement; and
  • The publication was done in a manner and for the purposes which the plaintiff consented to.[27]

DAMAGES

Recoverable damages for defamation include both noneconomic and economic losses.

1. NONECONOMIC LOSSES RECOVERABLE INCLUDE:

• Damages to the plaintiff’s reputation;
• Physical and mental pain and suffering;
• Inconvenience; and
• Emotional stress, fear, anxiety, embarrassment, humiliation, and impairment of quality of life.[28]

2. ECONOMIC LOSSES INCLUDE:

• Loss of earnings or income;
• Ability to earn income in the future;
• Reasonable and necessary medical, hospital, and other expenses; and
• Loss of or injury to his or her credit standing.[29]

CONCLUSION

Defamation is a common, but convoluted, cause of action in Colorado. At Volpe Law, our attorneys are ready to help you with your potential claim/defense. Give us a call at (720)770-3457 or complete a consultation request form for more information!

FEES

A $5,000 retainer is required for all pre-litigation dispute cases, while active litigation matters have a minimum retainer of $10,000. As of 1/1/2025, attorney rates vary between $275 – $400/hour. These hourly rates are paid by the retainer account. Fees and retainers for contract reviews and smaller projects vary, with some cases best suited for a 1-2 hour paid consultation at $350 per hour or $700 for two hours. All retainers are evergreen and refundable. Please call to inquire for further details.

DISCLAIMER

The information contained on this website is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter. Laws frequently change and therefore this content is not necessarily up to date, nor comprehensive. Contact us or another attorney with any legal questions specific to your matter. You may request a consultation by completing our consultation request form.

[1] CJI §22:8.

[2] CJI §22:1, Source and Authority ¶4 (citing Cinquata v. Burdett, 154 Colo. 37, 388 P.2d 779 (1963)).

[3] Brown v. Barnes, 133 Colo. 411, 296 P.2d 739 (1956).

[4] CJI §22:1, Source and Authority ¶4 (citing Hayes v. Smith, 832 P.2d 1022 (Colo. App. 1991)).

[5] Restatement (Second) of Torts §568A (1977).

[6] Denver Publishing Co. v. Bueno, 54 P.3d 893 (Colo. 2002).

[7] Morley v. Post Printing & Publ’g Co., 84 Colo. 41, 268 P. 540 (1928).

[8] CJI §22:1.

[9] CJI §22:2.

[10] CJI §22:4.

[11] CJI §22:5.

[12] Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974).

[13] Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo. 1983).

[14] Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982).

[15] Lawson v. Stow, 2014 COA 26, 327 P.3d 340.

[16] Smiley’s Too, Inc. v. Denver Post Corp., 935 P.2d 39 (Colo. App. 1996).

[17] Lewis v. McGraw-Hill Broad. Co., 832 P.2d 1118 (Colo. App. 1992).

[18] Seible v. Denver Post Corp., 782 P.2d 805 (Colo. App. 1989).

[19] CJI §22:1.

[20] CJI §22:2.

[21] CJI §22:4.

[22] CJI §22:5.

[23] CJI §22:16.

[24] CJI §22:17, Notes ¶2 (citing Restatement (Second) of Torts §§585-592A (1977).

[25] CJI §22:18, Notes on Use ¶3 (citing Restatement (Second) of Torts §§593, 598A (1977)).

[26] CJI §22:19.

[27] CJI §22:22.

[28] CJI §22:25.

[29] Id.