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Denver Publishing Co. v. Bueno9/16/2002
refers to the same section, 22:13. However, if the plaintiff is a private person, and the claim is for libel per se, the plaintiff need not prove actual damages. Gertz v. Robert Welch, 418 U.S. 323 (1974). The "special damages" essential for a libel per quod action reside at CJI-Civ. 4th 22:12.
Finally, concerning whether the statement must be "about the plaintiff," we note that the jury instructions require such a finding for libel per quod and false light, but not for libel per se. In this case, the trial court dismissed Bueno's libel per se claim because the statements "were not specifically directed at" the plaintiff. The jury instruction does not itself include a requirement that a libel per se claim need be elementally "about the plaintiff"; however, for that holding, the trial judge relied on language in McCammon & Associates v. McGraw-Hill Broadcasting Co., 716 P.2d 490 (Colo. App. 1986), " o be libelous per se, the broadcast must contain a defamatory meaning specifically directed at the person claiming injury." Id. at 492 (citing Inter-state Detective Bureau v. Denver Post, Inc., 484 P.2d 131 (Colo. App. 1971)). We take no position here as to whether the trial court, on this basis, properly directed a verdict for defendants on Bueno's libel per se claim, or whether libel per se necessarily includes an explicit element that the publication be about the plaintiff.
The Jury Instructions define "about the plaintiff," but in two different places, one for libel per quod, and one for false light. For libel, "A defamatory communication is made about the plaintiff if the recipients correctly understand, or mistakenly but reasonably understand, that it was intended to refer to the plaintiff." CJI-Civ. 4th 22:8 (citing Restatement (Second) of Torts § 564 (1977); Keohane v. Stewart, 882 P.2d 1293, 1300, n.10 (Colo. 1994)). For false light, "A public statement is about the plaintiff if people who (see) (hear) (read) the statement would reasonably understand that it refers to the plaintiff." CJI-Civ. 4th 28:7 (citing R. Sack, Libel, Slander & Related Problems § 12.4.3 (3d ed. 1999); J. McCarthy, The Rights of Publicity and Privacy §§ 3.3 & 3.4 (1997)). Here again, although the definitions of these elements appear in different sections of the CJI, they are for all intents and purposes the same.
In summary, then, apart from "defamatory" versus "highly offensive," the elements of the two torts are nearly identical.
A. Conduct
Both defamation and false light invasion of privacy seek to avert false publicity damaging to a plaintiff. With the exception of the significantly broader "publicity" required for false light, see Brown v. O'Bannon, 84 F. Supp. 2d 1176, 1180-81 (D. Colo. 2000) (noting that, under the Restatement, false light "publicity" requires communication to the public at large, while "publication" under defamation requires only one other person understan
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