The Law Office of
Cassandra M. Kirsch, LLC
Defamation occurs when a person makes a false and derogatory statement of fact about another person to a third party. The statute of limitations for defamation claims in Colorado is one year from the day the publication was made or when the plaintiff first discovered the statement if the plaintiff was using reasonable diligence to protect their reputation.
Depending on the type of defamation, the person referenced by the statement may have to prove money damages in a court of law. He or she may also have to show the statement was not made under the guise of a legal privilege or with a certain level of awareness by the defendant that the statement was false.
Any statement outside the category of defamation per se that tend to lower the estimation of someone in their community requires proof of money damages. These statements are referred to as defamation per quod.
In the business context, false and disparaging statements that target a business or its goods and services are also illegal and give rise to a cause of action for business slander. Business can recover both compensatory damages and punitive damages under the theory of trade libel.
Unlike defamation claims in Colorado, trade libel claims are subject to a two year statute of limitations.
A defendant in a defamation case has their own arsenal of defenses. Some statements may be subject to an absolute or conditional privilege. Others require the plaintiff to overcome a higher burden of proof.
An absolute privilege shields a defendant from a lawsuit, even if they knew the statement to be false or intended to harass the other person.
Absolute privilege exists in cases involving statements made during legislative, judicial, and executive proceedings. The privilege also attaches in situations where one spouse makes defamatory statements to their spouse about a third-person.
Defamatory statements made on the floor of the legislature or in a committee session are privileged even if they are completely irrelevant to the proceedings being conducted. Statements made during a judicial or executive proceeding must be relevant to the proceedings.
A conditional privilege, on the other hand, shields a defendant from a lawsuit only when the privilege is properly exercised in the performance of a legal or moral duty.
A conditional privilege can be invoked in cases where the publisher makes the alleged defamatory statement to a person who has a common interest in the subject matter of the statement and the statement is reasonably calculated to advance the interest.
However, conditional privileges can be lost. This can happen if the publisher makes the statement to persons without a common interest in the statement or make the statement knowing it to be false or with reckless disregard whether it is false.
If the statement is made about a public figure or involves a matter of public concern, the plaintiff must prove the defendant made the statement with actual malice. Actual malice is a higher burden of proof than negligence, and requires a difficult showing that the defendant made the statement knowing it was false or with reckless disregard whether it is false.
Once you or your business has been defamed, you have a variety of options before initiating a lawsuit. Sometimes, defendants will retract or remove their defamatory statements after receiving a cease and desist letter detailing their unlawful conduct. Other times, search engines and websites will remove the information from their results once they receive a letter putting them on notice of the defamatory information. Using a search engine or website for purposes of defaming another person often violates the terms of service for the company.
If you feel you or your business have been wrongfully defamed, contact our law office today to schedule a consultation. We can discuss your options based on the facts of the case, whether that be a cease and desist letter or beginning litigation.