The standard for Colorado defamation was defined in Keohane v. Stewart, 882 P.2d 1293 (Colo. 1994) as:
“a communication holding an individual up to contempt or ridicule that causes the individual to incur injury or damage.”
Defamation encompasses both oral communications, called slander, and written publications, called libel.
Elements of Defamation in Colorado
- Falsity: The defamatory statement must be false. Truth is an acceptable defense.
- Statement of Fact: The statement must be a false statement of fact relating to the plaintiff. For instance, a judge may deem accusations of insider trading defamatory, but referring to the same person as a “rotten person” may be classified as an opinion.
- Publication: The statement must be “published” or communicated to a third party. If a statement isn’t communicated to a third party, there is no publication or broadcast.
- Fault in Making the Statement: At a minimum, for a statement to be defamatory, it must have been made with negligent disregard. If the statements are about a public figure, or if the matter is of public concern, the plaintiff must prove actual malice.
- Damage: Except in defamation per se situations, the plaintiff must show material harm. It may be in the form of economic loss, damage to reputation or both.
Colorado Criminal Defamation
Colorado was one of the few states with a criminal defamation statute.
C.R.S. 18-13-105 made it a Class 6 felony to publish a false statement that impeaches the honesty, integrity, virtue or reputation of a living person. False statements that blacken the memory of a deceased person were also subject to criminal penalties.
Colorado’s criminal defamation statute was repealed in 2012.
Colorado Defamation Per Se
In Colorado, some statements are so egregious they’re considered inherently defamatory. These statements are referred to as libel or slander per se, and per se plaintiffs don’t have to prove material harm, as its assumed.
Colorado typically recognizes four types of statements as per se defamatory:
- Criminal accusations;
- Accusations of professional misconduct or misconduct while in public office;
- Accusations of a loathsome disease;
- Accusations of sexual misconduct, including adultery.
Colorado Defamation Statute of Limitations
Colorado treats a defamation case as an intentional tort. Under Colo. Rev. Stat. § 13-80-103(1)(a), a plaintiff has one year to file a civil defamation case. The one-year period begins on the date injury.
Colorado Defamation Damages
Monetary damages are tied to the material harm suffered by the plaintiff. If a person lost out on an employment or business opportunity, potential lost wages and lost profits are recoverable.
In some cases, a defamation victim may suffer psychological damage due to libel or slander. In these cases, medical treatment costs — including counseling and psychiatric care — can be calculated into the damages request.
Colorado does allow for exemplary or punitive damages if the defamatory act is intentional or malicious. Punitive damages are intended to punish the wrongdoer and discourage future behavior. However, Colorado has a cap on exemplary damages and cannot exceed the amount of compensatory damages awarded.
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