Defamation Per Se

DEFAMATION PER SE

For this article, we want to focus on defamation per se. For a more general article on defamation, go here.  

Defamation per se in Colorado means that someone either said or wrote something so harmful about another person that, on its face, the plaintiff doesn’t have to prove that she necessarily suffered monetary harm and she can proceed on the notion that the damage to her reputation is enough to justify a money judgment. 

CATEGORIES OF DEFAMATION PER SE

Defamation per se is limited to four (4) categories: 

  • Falsely accusing someone of a crime; 
  • Falsely accusing someone of professional misconduct or misconduct during a time in public office;
  • Falsely accusing someone having a communicable or “loathsome” disease;
  • Falsely accusing someone of sexual misconduct, including adultery. 

DAMAGES ARE PRESUMED

When we’re talking defamation per se, damages are presumed, but a jury still has to consider the amount of damages based on whether the plaintiff’s reputation actually suffered, and how much so.  

Without getting too far in the weeds, let’s assume for purposes of this article that the person making the defamatory statement is a private figure, and that the person being defamed is a private figure.  This is the most common call we get.  

Example: Jim and John are competing for a senior management position.  Jim decides to start a whisper campaign and tells his buddy George that John “cooked the books” last quarter so that his sales team would exceed projections.  Here, not only has Jim accused John of professional misconduct, but he’s accused him of committing a financial crime.  

Although the technical legal standard to bring a defamation claim is “fault amounting to at least negligence,” we prefer that there be an element of malicious intent coupled with an obvious, selfish motive so as to make our case easier to prove.  Here, Jim is intentionally spreading lies about John to edge him out for a job promotion.  

USUALLY HAS TO BE A FACT

Now, in order to be “defamatory,” the statement has to be asserted as though it were fact.  Opinions are protected by the First Amendment, but “there is no constitutional value in false statements of fact.”

As a threshold concern, the courts must first determine whether the alleged defamatory statement contains or implies a verifiable fact about the plaintiff and, second, whether the statement is reasonably susceptible to being understood as an assertion of actual fact.

FACT OR OPINION?

To figure out whether a statement is fact or opinion, the courts apply a three-part test

  1. Whether the statement is cautiously phrased in terms of apparency; 
  2. The entire context of the statement, not just the objectionable word or phrase; and 
  3. All the circumstances surrounding the statement, including the medium through which it is disseminated and the audience to whom it is directed. 

EXAMPLE: Tom is angry with his boss, Zach, and tells his co-worker, “Zach is the worst boss ever.”  Clearly, this is an opinion and not protected.  It might not be smart to talk trash on your boss, but you can’t get sued for defamation.

But what if Tom says to his co-worker, “Zach is the worst boss ever; he embezzled at least $100,000 from the company last year?”  While the first part of the statement is an opinion, the second half accuses Zach of a financial crime.  This is clearly a defamatory statement – slander per se in legalese.  

“OPINIONS” CAN BE DEFAMATORY

Opinions usually aren’t classified as defamatory.  But opinions can be defamatory if they “imply the existence of an undisclosed defamatory factual predicate . . . when the average reader or listener or viewer perceives the comment as essentially an assertion of fact.”  

MONETIZE YOUR DAMAGES?

So, let’s say you’re a victim of defamation per se.  What next? 

PRO TIP: When you file a defamation per se claim your entire reputation is up for scrutiny at trial.  There are limits, subject to the court’s discretion, but if you have skeletons in your closet that are relevant to your defamation claim, you need to bring those to your lawyer’s attention at the first meeting – not months later.  

Next, you have to think about how you monetize your damages.  Let’s go back to the example of Tom accusing Zach of embezzlement.  Although damages are presumed in defamation per se claims, you still have to come up with the amount of damages that you’re going to be asking for from the jury.  

Was Zach’s professional reputation harmed?  How?  Was Zach passed over for a promotion?  If so, how much did that cost him?  Will management testify that the rumor Zach was stealing company funds the reason he was passed over?  Did Zach get fired?  You get the point.  

Calculating your damages is the most difficult part of brining a defamation claim, especially if you’ve suffered reputational harm but can’t show any concrete monetary damages.   

CONCLUSION

If you or a loved one has been the victim of defamation per se, call Jeff or Malissa at Marathon Law.  303-704-1222