Defamation, Libel, Slander

Defending Your Reputation & Your Livelihood

Words matter.

At Marathon Law, we know that a defamation case can damage your reputation and livelihood. This damage can cause both economic harm and serious emotional distress, especially if your livelihood depends on your good character. Defamation can ruin the integrity and trustworthiness you’ve spent years building, which can affect how those around you view you. This can threaten not only your livelihood but your happiness as well.

Those clients who have the most potential to be harmed by defamation include public figures like celebrities, pro athletes, politicians, high-ranking public employees, and community leaders, but they are by no means the only people who can be hurt by defamation.

If you’re not one of these highly-visible public figures, proving that you’ve been defamed is actually easier because the burden of proof is much lower for private individuals.

No matter who you are, you need a defamation lawyer who is experienced in litigation, and one who can navigate the murky waters of the First Amendment, media, personal injury law, the Internet, and, last but certainly not least, a lawyer who can guide you through the entire litigation process from investigation through trial.

What does “defamatory” even mean?

man gossipping to his buddyUnder Colorado law, a statement is “defamatory” 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.

At first blush, the court will determine whether the statement or “publication” was reasonably capable of bearing a defamatory meaning. If the court determines the statement is not reasonably capable of bearing a defamatory meaning, it will dismiss the case. If the court does not dismiss the case, then a jury will determine whether the statement was understood as defamatory by one or more recipients.

PRO TIP: In order for something to be considered slander or libel, it has to be presented as a fact, OR an “opinion” that implies the allegation of undisclosed facts as the basis for the “opinion.” THERE IS NO SUCH THING AS A “FALSE OPINION.”

Libel and Slander

Defamation is generally broken down into two categories:

  1. Slander = Verbal 
  2. Libel = Written 

The majority (90%+) of cases we manage are libel cases. It’s often easier for an attorney to win a libel case because the communication is written. Slander cases, while still provable, can oftentimes devolve into a game of telephone fairly quickly. In effect, however, there is no legal difference. Whether someone started a false rumor about you at work or published it on the internet is not particularly relevant. It’s more of a question of what, in a legal sense, your attorney can prove.

“About the Plaintiff”

It seems obvious, but in order for something to be considered libel or slander, the plaintiff has to show that the statement at issue was “about the plaintiff.”

Therefore, if a client (plaintiff) wants to bring a civil case, he or she will have to show that the communication at issue was about the plaintiff. To do this, he must prove that one or more persons who heard the false statement correctly understood, or mistakenly but reasonably understood, that the statements were intended to refer to the plaintiff.

Defamation Per Quod vs. Defamation Per Se

Words matter. And with respect to libel or slander, the content of what was said will determine whether your defamation case can go forward.damges in a defamation case

Defamation Per Quod

With a libel or slander per quod case, the plaintiff has to prove, more likely than not, that

  1. The defendant published, or caused to be published, the statement at issue;
  2. That the statement amounted to defamation;
  3. That the statements were about the plaintiff; and
  4. That the statements caused special damages to the plaintiff.

Special Damages

The “special damages” element is key in libel or slander per quod. In order to succeed on a per quod case, you have to demonstrate special damages.

In defamation cases, “special damages” are limited to specific monetary losses, if any, which the plaintiff had as a result of the defendant’s statement. Special damages do not include injuries to the plaintiff’s mental state or feelings that do not result in specific monetary loss.

PRO TIP: You can recover compensation for emotional distress, often referred to by lawyers as noneconomic damages or “actual damages,” BUT only after you have proven your special damages.

Defamation Per Se

Defamation per se cases are different. Something that constitutes defamation per se does not need outside context for its interpretation. It’s defamatory on its face. The good thing about defamation per se cases, however, is that damages are presumed and do not have to be proven.

Colorado recognizes four categories of statements that amount to defamation per se:

  • Criminal accusations;
  • Accusations of professional misconduct or misconduct during time in public office;
  • Accusations of having an opprobrious disease; and
  • Accusations of sexual misconduct, most often meaning adultery.

For a defamation lawyer, these are slightly easier to pursue although modeling compensation can be challenging.

“Actual damages” in libel and slander cases are defined to mean any impairment of the plaintiff’s reputation, personal humiliation, mental anguish, or physical suffering.

Public Figure versus Private Citizen

Attorneys Jeff Dougan & Malissa Williams with ClientsWe won’t go too much into the public figure versus private citizen question here, but basically, if you’re a private citizen suing for defamation in a private matter, you must show that the individual who made the communication was negligent with regard to its truthfulness. You don’t have to show that they knew for a fact that it was a false statement.

Whereas, if you’re a public figure bringing a defamation lawsuit, you have to go the extra mile and show that the would be-defendant acted with actual malice, meaning he knew for a fact that the publication was false or he acted with reckless disregard for the truth when he published it.

Some Defenses to Libel and Slander Cases

Substantial Truth

A defendant is not legally responsible to the plaintiff for libel or slander if the affirmative defense of substantial truth is proved. What does that mean?

This defense of substantial truth means that the defendant said was substantially true. Substantial truth does not require every word to be true. Something is substantially true if its substance or gist is true.

Absolute Privilege

SLAPP courtCertain classes of persons, by virtue of their position or status, are absolutely privileged to publish certain matters and are not liable even if the statements are false or amount to defamation. An absolute privilege is not conditioned on any knowledge or belief as to the truth of the statements or upon an absence of ill will on the part of the actor. Those absolutely privileged include: (a) a judge or other officers performing a judicial function if the statement has some relation to the matter before him/her; (b) an attorney, party, witness, or juror, if the matter communicated has some relation to a judicial proceeding in which that person participates; (c) legislators in the performance of their legislative functions; (d) witnesses testifying at or persons providing communication preliminary to a legislative proceeding if the matter has some relation to the proceeding; (e) certain executive and administrative officers in communications made in the performance of their official duties; (f) one who is required by law to publish the matter; and (g) persons in a statutory confidential relationship.

Yes, you read that right: certain persons can invoke absolute privilege even when they’ve harmed someone else.

Attorneys usually get these calls in the context of divorce cases or other city or county civil matters. It’s always frustrating for us to have to review the case and tell the individual who called us that, while we hate to give them the advice we’re about to give them, they have no case where absolute immunity can be invoked.

loud mouth slanderQualified Privilege

Qualified privilege is a little bit harrier than absolute privilege. Whether or not a statement is protected by qualified privilege is evaluated on a claim-by-claim basis by the court. The theory is that the freedom to speak about certain things in a certain context trumps a would-be plaintiff’s ability to protect her character.

We see this in the context of employee reviews, credit reports, consumer reports, or comments made in the public interest.

PRO TIP: “SLAPP suits,” or strategic lawsuits against public participation, are lawsuits used to shut down the public discourse and go straight to the heart of qualified privilge. For more on SLAPP suits, see our article here.

Some examples of qualified privilege include:

  1. Protection of the publisher’s interest;
  2. Protection of the interest of the recipient or a third person;
  3. The common interest;
  4. Family relationships;
  5. Communication to one who may act in the public interest;
  6. Communication by an inferior state officer required or permitted in the performance of his official duties.

When it comes to qualified privilege, it is a question of law for the court to determine what circumstances will give rise to a privilege, but if there is a dispute as to whether those circumstances in fact existed in the particular case, or whether a privilege, if established, was abused, these questions are for the finders of fact.

Waiving Qualified Privilege

woman defending herself against defamation
Pic: Liza Summer

A person forfeits the qualified immunity defense under the law if the plaintiff can prove that the defendant abused the privilege. There are 4 ways for a plaintiff to show this:

  1. If the defendant knew what he said or wrote was false or acted with reckless disregard for whether it was false, at the time it was published, the privilege is removed.
  2. If the defendant acted primarily for purposes other than the protection of the interest for which the privilege was given, the privilege is gone.
  3. If the defendant knowingly published the slanderous or libelous content to a person to whom it was not otherwise privileged, the privilege is removed, unless the defendant reasonably believed that it was a proper means of communicating such matter to the person[s] to whom it was privileged.
  4. If the defendant did not reasonably believe the publication to be necessary to accomplish the purpose for which the privilege was given, then qualified privilege may not be claimed.

Statute of Limitations: One Year

Generally speaking, the statute of limitations to bring a defamation suit is one year.

More technically, in legalese, the affirmative defense of expiration of the statute of limitations is proved if the defense can show that the plaintiff knew, or with the exercise of reasonable diligence should have known, one year prior to commencement of the lawsuit, that he suffered harm and that such harm was caused in whole or in part by the defendant’s false communication.

Damages (Personal Injury)

guy with his feelings hurt
Pic: Ric Rodrigues

Questions of compensation are very similar to those you see in a personal injury lawsuit.

As we’ve already discussed there are two types of damages categories as they relate to libel and slander cases: actual and special damages.

Think of special damages as purely monetary losses directly related to, for example, a marked drop in business.

Think about actual damages like pain and suffering. It’s not a loss to business income per se, but more related to feelings of humiliation and embarrassment, what you felt when someone attacked your character and you felt helpless to do anything about it.

Mitigation of Harm by the Defendant

Let’s say that you’ve proven your defamation suit and now the jury is evaluating how much compensation to award you. Under the law, they must consider not only the damage to your character but also whether or not the defendant mitigated his damages.

Factors to consider are:

  1. Whether the defendant reasonably relied on the source of information on which the communication was based, i.e. he heard it on the news.
  2. Whether the plaintiff’s damages were caused, in part, by third persons who published on the same subject, before or about the same time as the defendant published.
  3. Whether the defendant did not intend to injure the plaintiff’s reputation, good name or feelings.
  4. Whether the defendant acted in good faith, believing what he was saying or writing to be true.
  5. Whether the defendant clarified, corrected, apologized for, or retracted the statement with reasonable promptness and fairness

How a Defamation Lawyer Gets Paid

In Colorado, there is no law that allows recovery of attorneys’ fees if you win your defamation lawsuit. Therefore, how the lawyer charges his fee will largely depend on the facts and strength of the allegations which includes whether you will be able to recover on the backend.

Some lawyers will represent clients on a contingency basis. But that usually means that the lawyer has done a thorough review and that he feels confident that there are deep pockets on the other end.

Unfortunately, the reality is that having spoken on the phone with numerous prospective clients at our firm, the cost to prosecute these cases can be very high, and the would-be defendants often don’t have the money to even reach a settlement agreement with our clients. This is why we usually charge hourly.

Even if we were to do an asset search, the majority of defendants we encounter do not have any money in the first place, much less property, especially when it comes to internet cases. People still feel as though if they said it on the internet there are no consequences and it’s as though it never happened.

Therefore, before we form an attorney-client relationship, we make sure that our clients know exactly what they’re getting into and that, as much as we would like to work for free, our law practice is still a local business at the end of the day. And although the person might have a super-solid claim, if the defendant can’t pay, it’s impossible to collect our fee as well.

Scrabble tiles spelling LAW
Photo by Sora Shimazaki

Your Legal Options

If you’ve been defamed and substantial financial and/or emotional harm has been done to you, you need a personal injury attorney who is well-versed in Colorado’s defamation laws. A defamation attorney can do things such as write a cease-and-desist letter that explains the legal consequences of a defamation action, and demand that the individual or business defaming you stop immediately.

An attorney may also seek to have the false statement retracted. Your defamation attorney will evaluate your economic and emotional harm to see whether they warrant filing a lawsuit. They will discuss whether certain other claims apply such as:

If any of these claims apply, they may be included as part of your defamation case.

Attorneys Jeff Dougan & Malissa WilliamsContact the Lawyers At Marathon Law Today

Defamatory statements can seriously impact your right to an enjoyable life, your right to be free from harassment, your right to earn a living, and even your property rights. The attorneys at Marathon Law have the experience you need. Our firm will discuss your legal options, any other related matters, and let you know if we believe you have a strong case. Every phone call is confidential. And you don’t even have to come on-site. We are happily conducting Zoom consultations during hours that work for you.

We understand that the current world we live in is dominated by an ever-changing media landscape and that, now more than ever, it’s important that attorneys be familiar with the myriad number of claims that an internet defamation case can raise.

If you would like to meet in person, our office is conveniently located in the historic Five Points neighborhood in Denver, Colorado. Contact us at (303) 704-1222 or fill out the form on our website and someone from our firm will contact you as soon as possible.

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