Online Defamation and Your Business

“The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than the basic concept of the essential dignity and worth of every human being; a concept at the root of any decent system of ordered liberty. Defamatory statements are so egregious and intolerable because the statement destroys an individual’s reputation; a characteristic which cannot be bought, and one that, once lost, is extremely difficult to restore.”
Keohane v. Stewart, 882 P.2d 1293, 1296 (Colo. 1994)

In today’s digital age, defamation can take numerous forms. A dissatisfied consumer with Internet access can make all kinds of false claims about your business on social media or other online forums. In these online defamation cases, you stand to lose much more than potential revenue — your personal and professional reputation could also be under attack. Fortunately, a savvy online defamation attorney can help you set the record straight.

This article provides an in-depth look at Colorado’s online defamation laws, including the various forms of defamation, the damages available to victims, and the penalties for offenders.

Talk to an Online Defamation Attorney

The Internet moves at the speed of light. A false review can reach millions in a matter of seconds. Don’t let someone else’s lies destroy what you have worked so hard to build. Our online defamation attorneys will work with you to remove the defamatory statements and recoup any damages your business may have suffered as a result. Call 303-688-0944 today to begin your free case assessment.

Defining Defamation

Defamation refers to a false statement that another person presents as a fact. These statements hold an individual up to contempt or ridicule, thereby causing injury or damage to that person. If a false, derogatory statement harms your reputation or ability to work, you may have a legitimate defamation case.

Defamation is classified as a civil wrong and “tort.” This means you can recover both monetary and non-monetary damages for the harm you suffer as a result of defamation.

What to Do

Generally, there are three goals to accomplish in an online business defamation case. The primary goal is to get the defamatory statement taken off the Internet as soon as possible. The second goal is to prevent the bad reviewer from ever posting another defamatory statement again. The third goal is to obtain an award for damages that resulted from the defamation.

Sometimes these goals can be accomplished by seeking an injunction and restraining order. If those actions are not sufficient to stop the online defamation, it may be time to file a lawsuit.

Different Types of Defamation

Defamation is divided into two categories: slander and libel.

Slander is defamation with no permanent record, such as a spoken defamatory statement or gesture. Slander can be found in public places, television programs, podcasts, by phone, face-to-face conversations, and more.

Libel is defamation with a permanent record, such as written or published defamatory statements. Libel can be found in print media such as newspapers and magazines, as well as online on websites and social media.

Libel includes not only the written word, but also defamatory photos or pictures. Knapp v. Post Printing & Pub. Co., 111 Colo. 492, 144 P.2d 981, 984 (Colo. 1943).

Any allegation of libel must specify:

  • the actual words written or photos published
  • the date or time period during which the words or photos were published
  • who wrote the words or published the photos 2018 Colo. Dist. LEXIS 635

Colorado Defamation Law

Colorado has only a small handful of statutes that speak to defamation. However, the courts have developed various defamation rules and standards throughout the years. Courts consider different factors depending on:

  • whether the plaintiff is a public figure
  • if the statement pertains to a matter of public interest or general concern
  • when the statement is a private matter and the plaintiff is a private person

Personal Jurisdiction

In order for an individual to be sued in Colorado, the state courts must have jurisdiction over that person. Colorado’s long-arm statute, Colorado Revised Statute § 13-1-124, provides that a non-resident may be sued in Colorado when he or she engages in some contact with Colorado, including:
  • the transaction of any business
  • the commission of a tortious act
  • the ownership, use, or possession of any real property
  • contracting to insure any person, property, or risk residing or located within this state at the time of contracting

Even with these guidelines, determining personal jurisdiction in Internet defamation cases can be tricky. In one Colorado case, an Oklahoma-based author filed a defamation claim in Oklahoma federal court against a Colorado book publisher, who allegedly sent a mass email containing defamatory content. The publisher submitted an affidavit stating that he did not send the email to anyone in Oklahoma. Therefore, the Oklahoma court refused to exercise jurisdiction because the record did not “indicate that any of the recipients resided in Oklahoma, much less that [the defendant] knew they resided there when he sent the email.” Shrader, 633 F.3d at 1248.

The Tenth Circuit set out a straightforward rule to explain that conclusion: unless a plaintiff can establish that “the defendant otherwise knew where the recipient [of an email] was located, the email itself does not demonstrate purposeful direction of the message to the forum state, even if that happens to be where the recipient lived.2020 Colo. Dist. LEXIS 1734
“The maintenance of a web site does not in and of itself subject the owner or operator to personal jurisdiction, even for actions relating to the site, simply because it can be accessed by residents of the forum state. Similarly, posting allegedly defamatory comments or information on an internet site does not, without more, subject the poster to personal jurisdiction wherever the posting could be read (and the subject of the posting may reside). In considering what more could create personal jurisdiction for such activities, courts look to indications that a defendant deliberately directed its message at an audience in the forum state and intended harm to the plaintiff occurring primarily or particularly in the forum state.”

Shrader v. Biddinger, 633 F.3d 1235, 1237 (10th Cir. 2011)

Elements of Defamation in Colorado

Successfully suing someone for defamation requires proving the following elements:

  • Falsity
  • Statement of fact
  • Publication
  • Actual malice
  • Damage

Falsity

The defamatory statement must be false. If the statement is factual, it isn’t defamation — no matter how unflattering. Colorado courts have held that:

“A statement is false if its substance or gist is contrary to the true facts, and reasonable people learning of the statement would be likely to think significantly less favorably about the person referred to than they would if they knew the true facts.” Denver Publ’g Co. v. Bueno, 54 P.3d 893, 899 (Colo. 2002)

However, the courts also went on to say that “the fact that a statement may have contained some false information does not necessarily make the substance or gist of the statement itself false.”

Statement of Fact

A defamatory statement must be a false statement of fact revolving around the person filing the lawsuit. If the statement is not presented as a fact, it may be classified as an opinion. Pure opinions are constitutionally protected and therefore cannot be defamatory.

Publication

The statement must be published or communicated to someone other than the person suing. A third party must be included for the publication to be considered defamation:

No action for libel or slander may be brought or maintained unless the party charged with such defamation has published, either orally or in writing, the defamatory statement to a person other than the person making the allegation of libel or slander. Self-publication, either orally or in writing, of the defamatory statement to a third person by the person making such allegation shall not give rise to a claim for libel or slander against the person who originally communicated the defamatory statement. C.R.S. § 13-25-125.5

Actual Malice

In plain English, “actual malice” means that the person you’re suing for online defamation knew the defamatory statements were false when they published them. This demonstrates that they showed a reckless disregard for the truth.

“Actual malice can be shown if the author entertained serious doubts as to the truth of the statement or acted with a high degree of awareness of its probable falsity.”
Fry v. Lee, 2013 COA 100, ¶ 1, 408 P.3d 843, 845

Damage

You must prove material harm, such as monetary losses or damage to reputation. A defamation per se situation is the only exception to this rule. (Read more on that below.)

Types of Defamation in Colorado

Not all defamation cases are created equal. Read below to learn more about the different types of defamation.

Defamation per se

Some false statements are considered so obviously harmful that courts do not need outside context to interpret them. These statements are considered defamatory per se, or “defamatory on its face.”

Defamatory per se statements include:

  1. False criminal accusations
  2. False accusations of professional misconduct or misconduct while in public office
  3. False accusations of an infectious or sexually transmitted illness
  4. False accusations of sexual misconduct, including adultery

Because of the gravity of these defamatory statements, you are not required to prove that you have suffered monetary harm in a defamation per se case. However, this does not apply if the victim is a public official. Public figures have a lower legal expectation of privacy, which means that they still need to prove actual damages to win a defamation per se case.

Colorado Defamation Per Se Examples

Here are some instances where Colorado courts have found libel per se in online defamation cases.

Runyan v. Fey

A Denver couple’s acrimonious divorce was at the center of a 2015 federal lawsuit. Erin Runyan and Sean Lando accused Runyan’s ex-husband, Geoffrey Fey, of “defamation and outrageous conduct” stemming from “numerous alleged slanderous and libelous statements about them, some of which were posted on the Internet.” Runyan v. Fey (D. Colo. Dec. 22, 2015)

Fey filed a counterclaim alleging that he was in fact the victim of defamation by Runyan and Lando.

The court examined 12 allegedly defamatory statements made by Fey, including a 2014 Facebook message he sent to Lando’s sister. In that message, Fey speculated that Lando may have sexually assaulted the divorced couple’s now-deceased 11-year-old daughter:

Do you ever wonder if Sean raped [A.F.]? I do all the time.

The implied criminal accusation was enough for a Denver judge to find that Fey had committed defamation per se.  Runyan v. Fey, (D. Colo. Dec. 22, 2015)

Muhaisen v. Doe

In 2017, anonymous YouTube users posted four videos accusing Denver attorney Jihad Muhaisen of domestic violence, assault, homicide, drug use, and fraudulent legal practices.

Muhaisen was able to discover the users’ email and IP addresses, but not their identities. He then filed a lawsuit in a Colorado district court alleging six claims, including libel per se. Muhaisen also submitted a motion for a preliminary injunction and temporary restraining order against the unknown defendants.

After determining that the allegations were false, District Judge Philip Brimmer found the videos to be libelous per se. Brimmer then granted a temporary injunction against the anonymous defendants:

“As an attorney, Mr. Muhaisen’s legal practice depends in part on his reputation. … The videos additionally interfere with plaintiffs’ ability to advertise their services and, in light of the competitive nature of the immigration legal market, reduce the business available to plaintiffs.” Muhaisen v. Doe (D. Colo. Sep. 12, 2017)

Defamation Per Quod

Defamation per quod covers all other types of defamatory statements that are not considered defamatory per se.

In these types of defamation cases, you’ll need to present evidence that proves actual or special damages.

Types of Possible Damages

Colorado defamation damages can be broken down into three core types:

  • presumed damages
  • actual damages
  • punitive damages
Presumed Damages

As noted above, defamation per se is a legal doctrine that classifies certain types of statements and publications as inherently inflammatory and defamatory. In these cases, you do not need to prove damages. Such damages are then said to be “presumed.”

Under Colorado law, presumed damages are not recoverable when the publication involves a matter of public or general concern.

Actual Damages

Actual damages are associated with defamation per quod actions. This means you must prove that you suffered actual and quantifiable harm.

In these cases, you generally will need to prove:

  • insult
  • injury
  • mental anguish and suffering
  • humiliation
  • injury to reputation
  • other pain
Punitive Damages

Commonly referred to as “exemplary damages,” punitive damages are damages awarded to a plaintiff in order to punish a defendant for extremely bad behavior – behavior that is considered malicious, highly negligent, wanton, or egregious.

To recover punitive damages in Colorado, you must prove the harm you suffered was due to:

  • fraud
  • malice
  • insult
  • willful and wanton conduct

Barriers to a Defamation Lawsuit

Truth

Truth is a complete defense to defamation. However, absolute truth is not required. Instead, you only need to prove that your statement was substantially true — that is, the gist of the matter is true. Gordon v. Boyles, 99 P.3d 75, 77 (Colo. App. 2004)

Absolute Privilege

Privilege refers to a person’s legal right to do or say something, at a specific time, and to a certain audience – even if the contents of their statement are considered defamatory.

Absolute privilege shields a person 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:

No members of the general assembly will be questioned in any other place for any speech or word spoken in debate in either house or for conducting or performing any other legislative activity that relates to the drafting of bills and other legislative measures, including amendments to such bills or measures, and to the rendering of assistance or information to constituents on their personal and private matters that are not publicly known. In addition, no staff members of the general assembly will be questioned in any other place for conducting or performing any duties or functions directly related to such legislative activity when it is conducted or performed at the direction of members of the general assembly. C.R.S. § 13-21-106

Qualified Privilege

Colorado law recognizes a qualified privilege for communications by a party with a legitimate interest to persons having a corresponding interest and communications promoting legitimate individual, group, or public interests. Burke v. Greene, 963 P.2d 1119, 1120 (Colo. App. 1998)
A law enforcement officer is one example of a person who might have qualified privilege in a defamation case.
Qualified privilege is not absolute. It does not cover statements that were made with actual malice or reckless disregard.

Contact an Online Defamation Attorney Today

The Internet is an ever-evolving entity, and so are the laws that govern it. Fortunately, it’s the job of Robinson & Henry’s online defamation attorneys to stay current on those laws. Don’t let defamatory cyberattacks destroy your reputation or livelihood. Call 303-688-0944 today to begin your free case assessment.

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