A Colorado appeals court case explores online defamation, and its limits.
Few would disagree that we live in the age of online commentary. Our society, which values both free speech and digital technology, has chosen to promote the right of the individual to leave a comment in online forums, news publications, blogs, and consumer websites. But, occasionally this right (coupled with the degree of anonymity that a screen name can provide) leads to abuse and in some extreme cases to defamation of character.
Broadly defined, defamation is a false allegation designed to damage the reputation of an individual or a larger entity (such as a business, a religious group, or a nation). Two close synonyms indicate the manner in which the defamation is conveyed. Spoken defamation is called slander, while defamation in print is known as libel.
A recent case heard by the Colorado court of appeals considers some of the workings of online defamation, a kind of libel that is of particular interest in the digital age.
The original case pit Lou Lou Goss, widow of deceased Native American artist Earl Biss Jr., against art dealer Paul Zueger and a number of associated businesses through which he sells works by Biss and other artists. A jury in this case awarded Zueger and the other plaintiffs damages in excess of $96,000 for alleged online defamation by Goss, while dismissing further claims against Goss of civil extortion and outrageous conduct.
During the appeals case (2014 COA 61. No. 12CA2000. Zueger v. Goss), Goss made two main arguments to the Court. First, she argued that none of her online statements against Zueger, et al. were defamatory. Second, she contended that the original jury had erred in their decision that the plaintiffs were not public figures, and their supplementary finding that Goss’s online statements were not comments on issues of public concern which could be exempt from defamation claims.
The appeals judge examined fifteen allegedly defamatory statements Goss had made online. Among these, number 9 likened Zueger’s company to “The ‘Man in Black’ for Mozart” – a reference to the supposedly jealous Italian composer Salieri who allegedly attempted to thwart Mozart and destroy his career. The judge concluded that none of these fifteen statements were defamatory per se (that is statements that were so innately harmful that they are considered to be defamatory regardless of other circumstances).
At this point, the case highlights some key issues of defamation as it is legally understood in Colorado and elsewhere.
In his article “Defamed in Colorado?”, attorney Edward C. Hopkins Jr. considers the legal definition of defamation, and makes a distinction between defamation of private and public individuals, the latter including “celebrities, politicians, some high-ranking public employees, and community or business leaders,” among others. He points out that their place in the public eye means that the standards required to prove defamation of such figures are considerably higher than for private individuals. So, as a rule of thumb, a public figure must have suffered recklessly false claims (that is, harmful and fabricated lies rather than unfavorable subjective opinions) that were printed for the express purpose of harming his or her good reputation.
Returning to the Colorado case, the judge concluded that none of Goss’s online statements held the plaintiff “up to contempt or ridicule thereby causing him or her injury or damage.” As legal precedent, the judge cited the case Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994), which concerns the alleged slander of former Colorado judge Paul J. Keohane.
Though the judge in the Goss case could find no evidence of defamation per se, he did disagree with Goss’s allegation that the plaintiffs were public figures. Their status as business owners does not automatically make their activities or opinions in this case worthy of “public concern,” the judge argued. Still, an observer can see why Goss and her attorney would have wanted the plaintiffs to be regarded as public figures. This would have made the plaintiffs’ efforts to prove defamation even more difficult. But, the appellate judge had already dismissed the allegations of defamation per se, and had no reason to regard the plaintiffs, who are neither celebrities nor high-ranking business leaders, as public figures.
The lessons to be drawn here are relatively clear. Free speech and open public debate are rightfully protected in this country. But, defamation of character has no place in reasoned exchange. It can lead to contention in court and, should verifiable damages be assessed, to financial repercussions.