Colorado § 13-25-125 - Justification - pleaded and proved.

§ 13-25-125. Justification - pleaded and proved.

In an action for libel or slander, the defendant, in his answer, may allege both the truth of the matter charged as defamatory and any mitigating circumstances to reduce the amount of damages; and, whether he proves the justification or not, he may give in evidence the mitigating circumstances.

Source: L. 1887: p. 114, § 69. Code 08: § 75. Code 21: § 75. Code 35: § 75. CRS 53: § 52-1-26. C.R.S. 1963: § 52-1-26.

ANNOTATION

I. General Consideration.

III. Mitigation of Damages.

I. GENERAL CONSIDERATION.

Law reviews. For article, "The Law of Libel in Colorado", see 28 Dicta 121 (1951). For article, "Emotional Distress, The First Amendment, and ‘This kind of speech’: A Heretical Perspective on Hustler Magazine v. Falwell", see 50 U. Colo. L. Rev. 315 (1989).

II. DEFENSES.

A. Truth.

B. Qualified Privilege.

A. Truth.

Truth of published matter, established by evidence, is a complete justification and defense. Republican Publ'g Co. v. Mosman, 15 Colo. 399, 24 P. 1051 (1890); Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337 (1972).

The truth of the charge must be shown. Where the publication is not privileged, the rule is that where the libelous article is published as being alleged in the complaint, it is not sufficient as a defense to show that it was thus alleged, but the truth of the charge must be shown. Republican Publ'g Co. v. Miner, 3 Colo. App. 568, 34 P. 485 (1893).

He only must justify that the gist of the matter is true. A defendant asserting truth as a defense in a libel action is not required to justify every word of the alleged defamatory matter; it is sufficient if the substance, the gist, the sting, of the matter is true. Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337 (1972).

Question to be decided is whether there is substantial difference between truth and libelous statement. Where the defendant asserts truth as a defense in a libel suit, the question, a factual one, is whether there is a substantial difference between the allegedly libelous statement and the truth; or stated differently whether the statement produces a different effect upon the reader than that which would be produced by the literal truth of the matter. Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337 (1972).

The defendant may plead the truth of the alleged libel without admitting the publication. Daniels v. Stock, 21 Colo. App. 651, 126 P. 281 (1912).

Even where libel is per se. Evidence of the truth of any allegedly libelous statement is admissible, even where the libel is per se, or where the publication is admittedly false. Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337 (1972).

Defamatory statement of public concern libelous only if knowingly false. When a defamatory statement has been published concerning one who is not a public official or a public figure, but the matter involved is of public or general concern, the publisher of the statement will be liable to the person defamed if, and only if, he knew the statement to be false or made the statement with reckless disregard for whether it was true or not. Walker v. Colo. Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450 (1975), overruled on other grounds, Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982).

For definition of "reckless disregard", see Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982).

Publisher can assume the truth of facts contained in his reporters' stories but this rule cannot apply to the publication of letters to the editor selected for publication in the paper by the publisher. Walker v. Colo. Springs Sun, Inc., 188 Colo. 86, 538 P.2d 450 (1975), overruled on other grounds, Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103 (Colo. 1982).

There can be no libel by innuendo of a public figure if the allegedly libelous statements are true. Pietrafeso v. D.P.I., Inc., 757 P.2d 1113 (Colo. App. 1988).

Question of truth is jury question. One who is alleged to have defamed another has a constitutional and statutory right to assert the truth of the defamatory statement and to have a jury decide such a defense. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988).

B. Qualified Privilege.

Qualified privilege is an affirmative defense to be pleaded by defendant. Radovich v. Douglas, 84 Colo. 149, 268 P. 575 (1928); Morley v. Post Printing & Publ'g Co., 84 Colo. 41, 268 P. 540 (1928).

The defense of qualified privilege is precluded where it is not pleaded, and facts alleged in the complaint, upon which it might be based, are denied. Radovich v. Douglas, 84 Colo. 149, 268 P. 575 (1928).

This defense may be pleaded without admitting the publication. Daniels v. Stock, 21 Colo. App. 651, 126 P. 281 (1912).

Defense of privilege is destroyed if plaintiff proves actual malice. It is the law that the condition that makes a published communication privileged is that it be not made maliciously. In such a case the law does not imply malice from the publication itself, but casts upon the plaintiff the burden of alleging and proving actual malice; but if he does this, the defense of privilege is destroyed. Morley v. Post Printing & Publ'g Co., 84 Colo. 41, 268 P. 540 (1928).

If the complaint sufficiently pleads facts showing that the publication is privileged, then it is not necessary that defendant affirmatively plead that defense. Radovich v. Douglas, 84 Colo. 149, 268 P. 575 (1928).

This point is raised by demurrer. Where it appears from the allegations of the complaint that the publication sued upon is privileged, a demurrer is the proper method of raising the point. Morley v. Post Printing & Publ'g Co., 84 Colo. 41, 268 P. 540 (1928).

Balancing test is used to determine when a qualified privilege should protect a communication. It is a question of law requiring the court to balance the interests protected by a privilege and the interests served by allowing a defamation action. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988).

National labor policy does not require unqualified privilege be given employer in a defamation action based upon statements made in a grievance proceeding. Thompson v. Pub. Serv. Co. of Colo., 800 P.2d 1299 (Colo. 1990).

A state law defamation action based upon statements made in a grievance or disciplinary proceeding may go forward when a qualified privilege for such statements is recognized. Thompson v. Pub. Serv. Co. of Colo., 800 P.2d 1299 (Colo. 1990).

III. MITIGATION OF DAMAGES.

Defendant may rely upon mitigating circumstances to reduce the damages, though pleaded in bar of the action. Rocky Mt. News Printing Co. v. Fridborn, 46 Colo. 440, 104 P. 956 (1909).

Even if publication was in fact false. Republican Publ'g Co. v. Mosman, 15 Colo. 399, 24 P. 1051 (1890).

The mitigating circumstances are limited to those tending to show a mitigation of the injury inflicted — a mitigation of the damages naturally flowing therefrom. Republican Publ'g Co. v. Miner, 12 Colo. 77, 20 P. 345 (1888).

Such as retraction by defendant. Thus, the circumstances showing the acts and conduct of the party inflicting injury by libel or slander in retracting or explaining the matter published, or anything else tending to lessen or to remove the injury or in any way to restore the injured party to the esteem previously enjoyed, are admissible in mitigation. Republican Publ'g Co. v. Miner, 12 Colo. 77, 20 P. 345 (1888).

Rumors and reports prior to publication are admissible. Giving our statute a liberal construction, and especially considering how the pleadings in this action are framed, we are of the opinion that common reports and rumors, to the same effect as the defamatory publication complained of, if circulated before such publication and without the agency of the defendant, were proper to be admitted in evidence, and should have been submitted to the jury by an appropriate and well-guarded instruction, not in any sense as a justification of the publication, but as matter tending in some degree, perhaps, to show that the plaintiff had suffered less damages than he might otherwise have sustained by reason of the publication. Republican Publ'g Co. v. Mosman, 15 Colo. 399, 24 P. 1051 (1890).

While good faith is not a defense, it may be pleaded in mitigation of damages. Rocky Mt. News Printing Co. v. Fridborn, 46 Colo. 440, 104 P. 956 (1909).

It has been held that a defendant newspaper may plead that it merely copied the libelous article from another paper. Rocky Mt. News Printing Co. v. Fridborn, 46 Colo. 440, 104 P. 956 (1909).

The denial of malice does not constitute a good plea in mitigation of damages; it sets forth no allegation of facts as required by our code and held by all the authorities necessary in order to make up such an issue. Meeker v. Post Printing & Publ'g Co., 55 Colo. 355, 135 P. 457 (1913).

The mitigating circumstances are new matter to be pleaded in the answer. Under code provisions like ours, it is held that justification and mitigating circumstances are new matter to be pleaded in the answer. Meeker v. Post Printing & Publ'g Co., 55 Colo. 355, 135 P. 457 (1913).

Pleading should state the facts relied upon. The general rule is in specially pleading mitigating circumstances that the answer should state the facts on which the mitigation is predicated. Meeker v. Post Printing & Publ'g Co., 55 Colo. 355, 135 P. 457 (1913).