Chapter 23 - § 23.4 • DEFENSES

§ 23.4 • DEFENSES

§ 23.4.1—Consent

Consent is a defense to invasion of privacy torts and serves as an absolute bar to any invasion of privacy claim.125 Some Colorado courts have used the term "waiver" instead of consent, but apply the same principle.126

§ 23.4.2—First Amendment

A defendant in a privacy case may have a defense under the First Amendment if (1) the information is newsworthy127 and of legitimate public concern, and (2) the publication or use of the privacy-invading information is primarily noncommercial.128 In Joe Dickerson & Assocs., L.L.C. v. Dittmar,129 the Colorado Supreme Court held that although the plaintiff had a valid cause of action for appropriation, the privacy-invading publication was protected under the First Amendment because the use of the plaintiff's name or likeness involved a matter that was newsworthy and of legitimate public concern in a primarily noncommercial publication.130 The court noted that the defendant's profit motive did not transform his publication into commercial speech.131

§ 23.4.3—Privilege

Even if an act meets the elements of one of the privacy causes of action, it may be subject to a qualified or absolute privilege.132 Absolute privileges provide the speaker or writer with immunity for his or her statements, even if they are privacy-invading.133 Qualified privileges do not grant immunity from liability but, rather, subject the plaintiff to heightened burdens of proof.134

Communications made in the course ofjudicial, quasi-judicial, and legislative proceedings are subject to an absolute privilege, and claims based on such communications may be dismissed under C.R.C.P. 12(b)(5).135 The absolute privilege applies to communications between an attorney and a third party when the attorney's statement is made in relation to a proposed or occurring judicial proceeding.136

Colorado courts have indicated the following communications are subject to a qualified privilege:

• Statements to law enforcement officers;137
• Statements made in the employment context, including but not limited to an employer's communication to an employee of its reasons for terminating the employee, inter-office memoranda, and corporate officers' communications with one another about their employee's conduct;138 and
• Statements involving a matter of public concern, including but not limited to the commission of a crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions.139

Where a qualified privilege is found to exist, the burden of proof is on the plaintiff to prove that the privilege was abused.140 Whether a privilege exists is a question of law; however, abuse of privilege is normally a fact question for the jury to determine.141

§ 23.4.4—Designation of Nonparty at Fault

Pursuant to C.R.S. § 13-21-111.5(3)(b), a defendant in a case for a civil tort cause of action, such as invasion of privacy, may as part of his or her defense elect to designate as a nonparty at fault either an individual or an entity who is either "wholly or partially at fault" for the damages alleged by the plaintiff to allocate responsibility for damages between the defendant and nonparty for the respective conduct of each.142 A defendant wishing to designate a person or entity as a nonparty at fault must do so "within 90 days following commencement of the action unless the court determines that a longer period is necessary."143 The statute specifies the required form, contents, and requirements of the notice. A defendant may designate an unidentified or unknown person.144 The designated nonparty may also be immune from suit.145 If the designated non-party is a licensed professional and his or her alleged fault amounts to professional malpractice, the practitioner would be well advised to determine whether the designation must be accompanied by a certificate of review.146

§ 23.4.5—Comparative Fault

In Colorado, comparative negligence is a statutory affirmative defense, which is referred to as "comparative fault."147 A plaintiff's own negligence/fault can bar recovery in a tort,148 but only if the defendant's wrongdoing was not "intentional"149 and the plaintiff's negligence was greater than the combined negligence of all "person[s] against whom recovery is sought."150 Thus, where an invasion of privacy claim is based on a defendant's intentional conduct, e.g., unreasonable intrusion upon the seclusion of another, Colorado's comparative fault statute would not be available as an affirmative defense, because an intentional tortfeasor may not seek to reduce his or her liability through a claim that the plaintiff was comparatively at fault.151

As to any respect to an invasion of privacy claim arising out of conduct that is negligent or reckless, e.g., unreasonable publicity given to another's private life (public disclosure of private facts), a plaintiff whose own negligence contributed to his or her injury is still entitled to recover damages "as long as the combined fault of all named tortfeasors, whether joined as defendants or designated as nonparties, is more than that attributable to" the injured person for whom damages are sought.152 However, in circumstances where the plaintiff's negligence played some role in his or her injury, the plaintiff's damages may be proportionally reduced by the amount of his or her negligence relative to that of all others combined. Exemplary damages may not be reduced by comparative fault because exemplary damages are based upon the defendant's misconduct.153

Comparative fault only applies if evidence in the record substantiates a finding that both the plaintiff and the defendant invoking comparative fault are at fault.154 Comparative fault is inapplicable where the defendant failed to prove any negligence/fault by the plaintiff.155

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