How Colorado Courts Define the Word “Defamatory”

Colorado’s courts use an extensive set of jury instructions for its defamation lawsuits. This helps make defamation litigation more predictable and helps parties evaluate their chances of success at trial. Colorado’s jury instructions may be found in Chapter 22. Defamation (Libel and Slander) of the Colorado Jury Instructions for Civil Trials. Anyone may purchase a copy of all of Colorado’s jury instructions from the Colorado Bar Association or Thomson Reuters. Colorado’s civil jury instructions are revised and updated annually.

Defamatory Defined

One of the most important Colorado defamation jury instructions is Colorado’s legal definition for the word “defamatory.” In Colorado’s courts, “[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.” CJI-Civ 22:8.

The most important thing to observe about this definition is that it does not include the word “false.” This means a Colorado plaintiff might not need to prove that a defamatory statement another person published about the plaintiff was false. Depending on the type of defamation claim, the defendant could have the burden of proving the defamatory statement was true or the plaintiff could have the burden of proving the defamatory statement was false.

When a Colorado defamation claim (1) involves a matter of private concern, (2) the defamatory statement is about a private person, and (3) the defendant had no legal privilege to publish the defamatory statement, then the defendant will have the burden of proving that the defamatory statement was true if the defendant asserts the truth defense. See CJI-Civ 22:4, 22:5, 22:16. But when a Colorado defamation claim (1) involves a matter of public concern or (2) a public figure, or, when (3) the person who published the defamation was entitled to a qualified privilege, then the plaintiff will have the burden of proving (a) that the defamatory statement was false and (b) that the person who published it either knew it was false or recklessly disregarded whether or not it was false when the statement was published. See CJI-Civ 22:1, 22:2, 22:3, 22:18, 22:19.

Therefore, a Colorado defamation plaintiff who sues a defendant for defamation involving a private matter could win his or her lawsuit even if the defamatory statement were in fact true. This can happen if the defendant is unable to prove to a Colorado judge or jury that the defamatory statement giving rise to the defamation lawsuit was true. It can be very difficult to prove a defamatory statement was true in some scenarios. For example, it can be difficult to prove that an employee stole money from a business if no one saw the employee steal the money and there is no video-recording that shows the employee stole the money. It can also be difficult to prove a rumor about an adulterous relationship if there is no documentary proof of it and neither of the adulterers is willing to admit to it.

Seek Legal Advice before Publishing Defamatory Statements

People who decide they will publish defamatory statements about Colorado residents or businesses should make sure they can prove their defamatory statements are true before they publish them. The best way to do this is to investigate the truth of a defamatory statement, gather reliable evidence that proves the defamatory statement is true, and then ask an attorney to review the defamatory statement before publishing it. Failure to take these steps could cause the publisher of the defamation to lose an expensive defamation lawsuit in Colorado and be ordered to pay substantial damages to the plaintiff even if the defamatory statement was true. The defamation plaintiff could sue the defamatory statement’s publisher or the publisher’s employer and anyone who aided and abetted or negligently supervised the defamatory statement’s publisher.

By Ed Hopkins, HopkinsWay PLLC. | © HopkinsWay PLLC 2014. All rights reserved.

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