Chapter 13 - § 13.6 • DEFENSES TO DEFAMATION

• Jurisdiction: Colorado

§ 13.6 • DEFENSES TO DEFAMATION

§ 13.6.1—Truth

The centerpiece of the law of defamation is that the truth is an affirmative defense to a defamation claim. As the Restatement (Second) of Torts provides, "[O]ne who publishes a defamatory statement of fact is not subject to liability for defamation if the statement is true." Restatement (Second) of Torts § 581A. In Colorado, one who is alleged to have defamed another has both a constitutional and a statutory right to assert the truth of the defamatory statement and to have a jury decide such a defense. First, Article II, § 10 of the Colorado Constitution, entitled "Freedom of Speech and Press," states:

No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.

(Emphasis added.) Second, these constitutional guarantees have been codified by the Colorado General Assembly in a statute that reads:

In an action for libel or slander, the defendant, in his answer, may allege both the truth of the matter charged as defamatory and any mitigating circumstances to reduce the amount of damages; and, whether he proves the justification or not, he may give in evidence the mitigating circumstances.

C.R.S. § 13-25-125. Accordingly, a defendant is not legally responsible to the plaintiff on a claim of libel or slander, if the affirmative defense of substantial truth is proved. See CJI-Civ. 22:16 (CLE ed. 2016). The defense is proved if the finder of fact concludes that the statement published by the defendant was true or substantially true. "A defendant asserting truth as a defense in a libel action is not required to justify every word of the alleged defamatory matter; it is sufficient if the substance, the gist, the sting, of the matter is true." Gomba v. McLaughlin, 504 P.2d 337, 338 (Colo. 1972); see also Fry v. Lee, 2013 COA 100, cert. denied (2014) (claim against newspaper was substantially true).

The question of whether a statement was substantially true is usually reserved for the jury. As the Colorado Supreme Court observed in Churchey, "Because our constitutional provision reserves to the jury the question of the truth of an allegedly defamatory statement, courts have been reluctant to take the question away from the jury." 759 P.2d at 1341. Thus, in Churchey, the court held that factual disputes about whether the plaintiff was in fact "dishonest" precluded entry of summary judgment, and constituted an issue for the jury to decide. Id.

§ 13.6.2—Consent

Another affirmative defense to a claim for defamation is consent. The Restatement (Second) of Torts notes that "the consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation." Restatement (Second) of Torts § 583. "The extent of the privilege is determined by the terms of the consent." Id. § 583, cmt. d. "If the person to whom the consent is given reasonably interprets the language used or the acts done as a consent to the publication of the defamatory matter to any person, at any time, in any manner and for any purpose, the publication however made is privileged." Id. However, the Restatement (Second) of Torts crafts an exception to this general rule by elaborating, "An honest inquiry or investigation by the person defamed to ascertain the existence, source, content or meaning of a defamatory publication is not a defense to an action for its republication by the defamer." Restatement (Second) of Torts § 584. In Costa v. Smith, the Colorado Court of Appeals adopted § 583 of the Restatement (Second) of Torts. 601 P.2d 661 (Colo. App. 1979). This adoption was reinforced in Dominguez v. Babcock, where the court of appeals held:

Thus, if a person requests, or consents to, publication of a matter which is defamatory, the resulting defamation is subject to an absolute privilege. However, this is to be distinguished from situations in which the person defamed honestly investigates the existence, source, content, or meaning of an existing

...