What is defamation?
At its most basic, defamation involves making a false statement about someone that damages that person’s reputation.
In more technical terms, “[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.” This is taken from Instruction 22:8 (Chapter 22) of Colorado’s Civil Jury Instructions (CJI-Civ.), the pattern instructions that may be given to juries during trials for defamation cases.
These instructions let us know that not all disparaging statements are defamatory.
First, generally speaking, actionable statements must be false statements. Though, which side (person suing or person being sued) ultimately bears the responsibility of proving the statements were false or true depends on the nature of the case.
Overall, however, the person sued (also called the defendant) will not be legally responsible to the person bringing the defamation claim (also called the plaintiff) “if the affirmative defense of substantial truth is proved.” “A statement is substantially true if its substance or gist is true. Substantial truth does not require every word to be true.” CJI-Civ. 22:16 (Affirmative Defense—Substantial Truth).
Second, the statements at issue must be statements of fact or opinion statements that imply certain undisclosed (but defamatory) facts are true. CJI-Civ. 22:8, Note 2. This is because “’there is no such thing as a false opinion.” Id. An example of an opinion statement that implies a certain fact is true could be, “In my opinion, Mr. Green is a murderer.” Whether someone has committed murder is a fact, something capable of being proven true or false. Saying “In my opinion” before asserting “Mr. Green is a murderer” can still be the basis for a defamation claim.
Third, defamatory statements are false statements that can do serious harm. They call into question a person’s reputation, professionalism, ethics, or honesty. They are false statements that subject a person to serious contempt, hatred, scorn, and ridicule.
It is always important to look at the full context of a statement to determine if it’s one that is, or could be, considered defamatory. CJI-Civ. 22:10, 22:11.
What needs to be proven to win a defamation claim?
In Colorado, there are different requirements to prove defamation claims depending on the nature of the defamatory statement and the status of the plaintiff.
Defamation claims can be based on statements that are defamatory per se or defamatory per quod. A statement is defamatory per se if its defamatory meaning is clear on the face of the statement, or in other words, that no outside evidence or information is needed to understand that the statement is defamatory. CJI-Civ. 22:1 (Source and Authority). An example is the allegation, “Mr. Green is a murderer.” Generally speaking, most people recognize that being called a murderer is going to lower their reputation in the community. The statement is also clearly talking about one person in particular.
In Colorado, it also matters whether the plaintiff is a private person (as opposed to a public figure or a public official) and whether the subject matter of the defamatory statement is a matter of public concern or a private matter.
In cases of defamation per se where the plaintiff is a public official or public figure, or, where the plaintiff is a private person but the subject matter is of public concern, a jury must determine the following:
1. The defendant published (made or said or wrote) the defamatory statement;
2. The statement caused actual damages to the plaintiff;
3. The substance or gist of the statement was false at the time it was made; and
4. The defendant knew the statement was false or made the statement with reckless disregard as to whether it was false.
Elements 1 and 2 must be proven by a preponderance of the evidence. Elements 3 and 4 must be proven by clear and convincing evidence.
The elements are a bit different when it’s a claim of defamation per quod or when the claim involves purely private individuals and a purely private matter.
What kinds of damages are available in a defamation case?
Colorado plaintiffs who win their defamation claims can be awarded money to compensate them for the harm they suffered as a result of the defamation. That can be harm to reputation (personally or professionally), economic losses (like lost profits), emotional distress and anxiety, future economic losses, and the expenses that come with trying to repair their reputation or otherwise lessen the harm caused.
In some cases, punitive damages may also be awarded. Punitive damages aren’t meant to compensate for a specific loss. They’re meant to punish extraordinarily bad actions and send a deterrent message to others. CJI-Civ. 22:27 (Exemplary or Punitive Damages).
No one can predict with any certainty whether a person will win or lose a defamation case.
In general, though, a strong defamation claim is one that is based on credible, convincing evidence that can prove each of the elements required for that particular claim. If you’re bringing a defamation claim or you’ve been sued for defamation, an experienced defamation attorney can assess the strengths and weakness of the defamation claim and help you understand your options.