Defamation Per Se in Colorado
There are two types of defamation; defamation per se and per quod. One main difference relates to whether it is necessary to prove damages; which can be difficult to do with regards to allegations against a business or business owner. It is important to remember that defamation has a short statute of limitations one year. Each publication is a separate cause of action. Defamation per se occurs when someone makes a false public posting alleging:
- Commission of a crime
- Professional misconduct, such as unethical behavior
- That a person has a loathsome disease, or
- Sexual misconduct
Damages occur in a variety of way. They can be monetary, for example. If a published comment deterred potential clients from contacting a business, that constitutes harm resulting in damages, i.e. lost profits. Another type of damage is punitive. Punitive damages are intended to deter future similar behavior. Punitive damages can be awarded if defamatory postings are potential or malicious.
Damages can also be related to physical or mental harm. The stress resulting from a posting may cause physical maladies or emotional distress. These damages may often be established by medical documentation. If a person puts their physical or mental health at issue, then they may be required to release their medical records. Thus a claimant should make a conscious choice whether to allege medical issues if medical privacy is a concern.Plaintiff Status
The status of the Plaintiff will determine applicable legal standards. If the plaintiff is a public figure, a different standard applies to the case before he or she can obtain damages. The Court will determine whether the Plaintiff was a private figure or in contrast a public figure or a private figure involved in a matter of public concern. The U.S. Supreme Court held that a public figure must prove that the untrue statement was made about the public figure with actual malice. The rationale is that public figures should anticipate public criticism, even when it is false or inaccurate except when the false statement was made to deliberately cause harm to the public figure.
Public figures may include, for example:
- police officers; and
- church leaders
The burden of proving that a statement is false is on the Plaintiff. In a business context, falsity might be proven through an affidavit of the Plaintiff or a criminal records check showing the lack of a criminal record, for example. Retraction of the offensive publication can mitigate but not eliminate damages.Turning Change Into Opportunity in Colorado
A knowledgeable and experienced attorney from a defamation law firm can guide you through Colorado defamation matters by negotiating, mediating and litigating. This allows you to focus on to a better future. Defamation matters are difficult to navigate alone.
Sabra Janko is a knowledgeable and experienced attorney who protects your best interests and ensures that you are aware of your legal rights and obligations. Contact us at 719-344-5523 for a free 30 minute informational consultation or complete our online form.