Is it Defamation if it's True?

To answer this question, we need to first define what constitutes “defamation.” Because every state can have different requirements for what constitutes defamation (and what defenses to defamation apply), it is important to first identify what laws apply to you. To answer this question, ask yourself a couple of questions: Where do you live? Where does the opposing party live? Where did the alleged defamation take place? These are just some questions that can help you determine what law applies. However, to be more certain about the answer to this question about jurisdiction, you can reach out to one of the attorneys at Belzer Law to help you evaluate what court has jurisdiction over your claim.

This article will discuss defamation in Colorado, along with significant Colorado cases that explain how Colorado courts will evaluate defamation claims

So, what is defamation?

We have all heard of defamation, and we have all seen the salacious cases in the news about celebrities and political figures suing people for defamation. But what exactly is required to bring a claim against someone for defamation?

Well, The Colorado Court of Appeals has answered that question for Colorado courts, explaining that “[a] claim for defamation requires, at a minimum, the publication of a false statement of a defamatory nature.” Fry v. Lee, 2013 COA 100, ¶ 20. A defamatory statement is “a communication that holds an individual up to contempt or ridicule thereby causing him to incur injury or damages.” Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994). 

Breaking this down, we can see that a claim for defamation requires a few things:

1.   A defamatory statement;
2.   That is false;
3.   Publication;
4.   Damages (usually monetary damages).

This definition of defamation encompasses both libel (written) and slander (spoken) statements. Rather than focusing on all of the elements of defamation, this article will focus on the second element—that is, the requirement that the statement be false.

They key point here is that the statement must be false. If the statement is true, then it is not defamation. In fact, “substantial truth is an absolute defense to a defamation claim.” Fry v. Lee, ¶ 22. So even if the statement holds someone up to ridicule, it is not defamation if it is substantially true.

What does “substantially true” mean?

As we see above, truth (or substantial truth) is an absolute defense to a defamation claim. So how have courts interpreted the “substantially true” requirement? Does every single word have to be true

No. Substantial truth does not mean that every single word must be true. Instead, as the Colorado Supreme Court has stated, “it is sufficient if the substance, the gist, the sting, of the matter is true.” Gomba v. McLaughlin, 504 P.2d 337, 339 (Colo. 1972).

So how do courts evaluate whether “the gist” of the statement is true? The Colorado Court of Appeals has explained that in determining whether the challenged statement is substantially true, courts should focus their inquiry “on how an average reader would read the statement.” Fry v. Lee, ¶ 23. In doing so, “[t]he test is whether the challenged statement produces a different effect upon the reader than that which would be produced by the literal truth of the matter.” Id. If the challenged statement does not produce a different effect on the reader than that which would be produced by the literal truth, then the statement is protected by the substantial truth doctrine, and t. Therefore, it would not be constitute “defamation” under Colorado law

But does that mean that no one can sue for a true statement? Not necessarily. Someone can try to sue you for a true statement by filing a complaint in court claiming that you defamed them. The burden would then shift to you to prove the substantial truth of the statement using the legal procedures available in the judicial system. Some potential legal procedures used for asserting this doctrine include motions to dismiss or motions for summary judgment. Although these types of motions can be successful in getting rid of a defamation claim, their requirements are nuanced.

If you have been accused of defamation—or if you are considering initiating a lawsuit because you think someone defamed you—it is important to reach out to an experienced litigator to evaluate your case. The attorneys at Belzer Law have extensive experience in litigating and defending defamation claims and can guide you through your case. We have succeeded in both bringing and defending defamation claims and can bring their substantial experience to your case.