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Denver Publishing Co. v. Bueno9/16/2002
ght among its recognized torts.
A. Elements
A review of the elements required for defamation by libel per se, defamation by libel per quod, and false light invasion of privacy demonstrate the overlap among the torts:
Libel (Per Quod) CJI-Civ.4th 22:2 CJI-Civ.4th 22:1 Libel (Per Se) 28:10 CJI-Civ.4th False Light
1. Publication 1. Publication 1. Publicity
2. False 2. False 2. False
3. Reckless Disregard 3. Reckless Disregard 3. Reckless Disregard
4. Special Damages 4. Actual damages 4. Actual Damages
5. Defamatory 5. Defamatory as a matter of law 5. Highly offensive to a reasonable person
6. About plaintiff 6. About Plaintiff
Clearly, the elements of the torts are substantially similar. Beginning with publication, we review the elements to identify any differences between the torts. One minor difference emerges under the necessary "publicity." In a libel claim, "publication" requires only that some person other than the plaintiff understand the statement; for false light, "publicity" requires communication to the public at large. Brown v. O'Bannon, 84 F. Supp. 2d 1176, 1180-81 (D. Colo. 2000).
The element of "falsity" as set forth in the Jury Instructions varies only slightly between the torts. For libel,
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. The fact that a statement may have contained some false information does not necessarily make the substance or gist of the statement itself false. CJI-Civ. 4th 22:11. For false light:
A statement contains false information if, considered as a whole, the substance or gist of the statement is false. The fact that a statement may have contained some false information does not necessarily make the substance or gist of the statement false. CJI-Civ. 4th 28:11.
With regard to the mental state, reckless disregard, the Jury Instructions use the same definition for either tort, located in section 22:3. An actor publishes a statement "with reckless disregard when, at the time of publication [he or she] believes that the statement is probably false or has serious doubts as to its truth." CJI-Civ. 4th 22:3; see also Cantrell v. Forest City Publ'g Co., 419 U.S. 245, 249-51 (1974) (discussing Time, Inc. v. Hill, 385 U.S. 374 (1967), as requiring "actual malice" in public figure false light cases to avoid First Amendment pitfalls). In short, under Colorado law, the requisite mens rea for both defamation and false light would be precisely the same.
On the question of damages, there is no textual difference between the "actual damages" necessary for libel per se and false light; the CJI there
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