Chapter 13 - § 13.2 • ELEMENTS OF A CAUSE OF ACTION FOR DEFAMATION

• Jurisdiction: Colorado

§ 13.2 • ELEMENTS OF A CAUSE OF ACTION FOR DEFAMATION

§ 13.2.1—Elements Under Colorado Law

In Williams v. District Court, the Colorado Supreme Court reaffirmed the elements of a claim for defamation in this state. 866 P.2d 908 (Colo. 1993). There, the court held:

In Colorado, the elements of a cause of action for defamation are: (1) a defamatory statement concerning another; (2) published to a third party; (3) with fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special damages or the existence of special damages to the plaintiff caused by the publication.

Id. at 912 n. 4. See also Keohane, 882 P.2d 1293. Each of these four elements is addressed separately below.

§ 13.2.2—"A Defamatory Statement . . ."

The first element of a claim of the tort of defamation in Colorado is that there be a defamatory statement concerning another. There are really two considerations that relate to this element. First, is the statement capable of carrying a defamatory meaning? Second, is the statement protected by a constitutional privilege?

Whether a Statement Is Capable of a Defamatory Meaning

As a threshold matter, there can be no claim for defamation if the statement complained of is not defamatory. It is a question of law for the court to determine in the first instance whether a statement is reasonably capable of bearing a defamatory meaning. Fry v. Lee, 2013 COA 100, cert. denied (2014). See, e.g., NBC Subsidiary (KCNC-TV), Inc. v. Living Will Ctr., 879 P.2d 6 (Colo. 1994); Restatement (Second) of Torts § 614(1). In evaluating this issue, the allegedly defamatory words are "presumed to have the meaning ordinarily attached to them by those familiar with the language used." Walters v. Linhof, 559 F. Supp. 1231, 1236 (D. Colo. 1983).

"To be defamatory, the statement need only prejudice the plaintiff in the eyes of a substantial and respectable minority of the community." Giduck v. Niblett, 2014 COA 86, ¶¶ 36-39 (statement that plaintiff is a "charlatan" who "exaggerate[d] his resume" is protected opinion when stated "in an online community where anonymous individuals can express highly biased opinions"); Arrington v. Palmer, 971 P.2d 669, 671 (Colo. App. 1998). To determine if a statement is defamatory, Colorado courts use a two-part test articulated in NBC Subsidiary (KCNC-TV), Inc. v. Living Will Center, 879 P.2d 6 (Colo. 1994). Under NBC Subsidiary, the court will first determine if the statement contains or implies a verifiable fact about the plaintiff. Next, the court will determine whether the statement is susceptible of being understood as an assertion of actual fact. Id. at 10. See also Zueger v. Goss, 2014 COA 61. The court will review various factors, including phrasing of the statement, the context in which it appears, and the circumstances surrounding its publication. Id. at ¶ 16.

The Restatement (Second) of Torts provides that "[t]he meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express." "[The] meaning defendant intended [is] not usually relevant, but rather how words were understood by those to whom communicated; words should be given the meaning which may fairly be presumed to have been conveyed to those to whom it was communicated, considering all the circumstances of their publication." CJI-Civ. 22:10 (CLE ed. 2016), Source and Authority 1 (citing Downing v. Brown, 3 Colo. 571 (1877); 2 F. Harper, F. James & O. Gray, Torts § 5.4 (2d ed. 1986); W. Prosser & W. Keeton, Torts § 111, at 780-83, and § 113, at 808-10 (5th ed. 1984)). Thus, "[i]f the maker of the communication intends to defame the other and if the person to whom it is made so understands it, the meaning so intended and understood is to be attached to it. This is true although the meaning is so subtly expressed that the ordinary person would not recognize it." Restatement (Second) of Torts § 563, cmt. b.

The statement, however, must be considered as a whole. The Restatement (Second) of Torts provides, "In determining the meaning of a communication, words, whether written or spoken, are to be construed together with their context. Words which standing alone may reasonably be understood as defamatory may be so explained or qualified by their context as to make such an interpretation unreasonable." Restatement (Second) of Torts § 563 cmt. d; see also Fry, 2013 COA 100; CJI-Civ. 22:11 (CLE ed. 2016). Thus, "allegedly defamatory language must be examined in the context in which it is uttered." Burns v. McGraw-Hill Broad. Co., 659 P.2d 1351, 1360 (Colo. 1983). "Protecting the important competing interests of free speech and reputation requires a flexible approach anchored in the context of each cause of action." Id. When a party makes a speculative or conjectural statement based upon truthful, nondefamatory facts that are disclosed or otherwise...