The Elements of a Defamation Claim in Arizona

The tort of defamation includes two comprehensive categories: libel and slander. Libel constitutes the written publication of a defamatory statement while slander arises through spoken words. Liability deriving from defamation can extend into nearly any context including newspaper editorials, magazine articles, public speeches, television broadcasts, and even intra-office memorandums.

Traditionally, the Restatement has served as Arizona’s primary authority regarding defamation. In Arizona, “[o]ne who publishes a false and defamatory communication concerning a private person, or concerning a public official or public figure in relation to a private matter, is subject to liability, if, but only if, he (a) knows that the statement is false and it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them.” Antwerp Diamond Exch. of Am., Inc. v. Better Bus. Bureau of Maricopa Cnty., Inc., 130 Ariz. 523, 528, 637 P.2d 733, 738 (1981) (quoting Peagler v. Phx. News., Inc., 114 Ariz. 309, 315, 560 P.2d 1216, 1222 (1977)); see Dube v. Likins, 216 Ariz. 406, 417, 167 P.3d 93, 104 (Ct. App. 2007) (quoting Rowland v. Union Hills Cntry. Club, 157 Ariz. 301, 306, 757 P.2d 105, 110 (Ct. App. 1988)). 

Each of the elements of defamation is observed in turn below.

“Publication . . . is a word of art, which includes any communication by the defendant to a third person.” Saban v. Maricopa Cnty., 1 CA-CV 08-0607, *5, ¶ 22, 2010 WL 2977553 (Ariz. Ct. App. July 29, 2010) (quoting Restatement (Second) of Torts § 652E, cmt. a (1977)); see Dube, 216 Ariz. at 417, 167 P.3d at 104 (“Publication for defamation purposes is communication to a third party.” (citing Morris v. Warner, 160 Ariz. 55, 62, 770 P.2d 359, 366 (Ct. App. 1988); Restatement (Second) of Torts § 577 (1977))).

For example, “the communication between two agents of the same principal is a publication for defamation purposes.” Dube, 216 Ariz. at 418, 167 P.3d at 105 (holding that letters between two parties were “published” for defamation purposes, even if they were written in the scope of their employment). The scope of the publication element is undoubtedly expansive.

Notably, Arizona adopted the Uniform Single Publication Act, which permits only one cause of action for a “single publication.” Ariz. Rev. Stat. 12-651(A). For example, a plaintiff will be able to bring only one cause of action against a defendant who published a defamatory statement in a magazine even though multiple people read the magazine.

“To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff’s honesty, integrity, virtue, or reputation.” Turner v. Devlin, 174 Ariz. 201, 203-04, 848 P.2d 286, 288-89 (1993) (quoting Godbehere v. Phx. News., Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989)). “Whether a statement is capable of defamatory meaning is a question of law for the court, but whether the meaning conveyed was defamatory is a question for the jury.” Dube, 216 Ariz. at 419, 167 P.3d at 106 (citing Yetman v. English, 168 Ariz. 71, 79, 811 P.2d 323, 331 (1991)). Importantly, the “meaning of words and statements should not be construed in isolation; rather, consideration should be given to the context and all surrounding circumstances, including the impression created by the words used and the expression’s general tenor.” Burns v. Davis, 196 Ariz. 155, 165, 993 P.2d 1119, 1129 (Ct. App. 1999).

For example, statements that allege an individual “committed an indiscretion or transgression” while “referenc[ing]” that the individual committed such acts “contrary to . . . ‘specific instructions’ and [was] ‘unauthorized,’ could be construed as statements alleging [the individual] committed an act in violation of . . . policy or authorization.” Dube, 216 Ariz. at 419, 167 P.3d at 106. Accordingly, because such statements could “bring [the individual] into disrepute, contempt, or ridicule, or impeach [his] honesty, integrity, virtue, or reputation,” the statements would be “capable of defamatory meaning.” Id.

Additionally, in order for defamation to arise, the defamatory statements must be statements of fact or “imply facts upon which [an] opinion [is] based.” Id. ; see Turner, 174 Ariz. at 208, 848 P.2d at 293 (“[S]tatements of opinion are actionable when they ‘imply a false assertion of fact.” (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 2706 (1990))). Accordingly, a statement consisting of “[p]ure opinion is not actionable in Arizona.” Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (Ct. App. 1986) (citing Restatement (Second) of Torts § 566 (1977)).

For example, stating that an individual “committed an ‘indiscretion’ or ‘transgression[]’ in a way that was ‘unauthorized’ or ‘contrary to . . . specific instructions’ [could] at least imply facts upon which the opinion [is] based.” Dube, 216 Ariz. at 419, 167 P.3d at 106.

Taken as a whole, the alleged defamatory statements must be “of and concerning” the plaintiff. Reynolds v. Reynolds, 231 Ariz. 313, 294 P.3d 151, 155-56 (Ct. App. 2013) (reasoning that the only allegedly false statement in a newspaper article (“The Issue is that my mother has no plan”) was not capable of meaning the publisher’s siblings caused or were responsible for their mother not having an end-of-life plan).

In a more expansive interpretation of Arizona’s defamation laws, the Arizona Supreme Court reasoned that “[l]ibel of a corporation will support an action by an owner-shareholder if reasonable readers would understand it to charge the individual with the same conduct as the corporation.” Dombey v. Phx. News., Inc., 150 Ariz. 476, 491, 724 P.2d 562, 577 (1986) (citing Brayton v. Crowell-Collier Pub. Co., 205 F.2d 644, 645 (2d Cir. 1953)). Thus, if “a reader of the article would understand that it referred to [plaintiff] individually as well as to the corporation[,] . . . the individual [would be] libeled as well.” Id. (citing Peagler, 114 Ariz. at 315, 560 P.2d at 1222). Consequently, “the converse is also true. Libel of an individual can cause injury to a corporation if they are so interconnected that a reasonable person would perceive harm to one as harm to the other.” Id.

To be liable for defamation, the declarant must have known of the defamatory statement’s falsity, been reckless in his disregard of the statement’s truth, or been negligent in ascertaining the veracity of the statement. For example, if the statement “was the product of the defendant’s imagination, this would fulfill the burden of establishing a knowing falsehood.” Peagler, 114 Ariz. at 316, 560 P.2d at 1223 (citing St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323 (1968)).

In order for a plaintiff to successfully prove the reckless standard, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Selby v. Savard, 134 Ariz. 222, 225, 655 P.2d 342, 345 (1982) (citing St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325). 

“Negligence is . . . conduct which creates an unreasonable risk of harm. It is the failure to use that amount of care which a reasonably prudent person would use under like circumstances.” Peagler, 114 Ariz. at 315, 560 P.2d at 1222. Thus, “the jury must determine from the preponderance of the evidence . . . whether the defendants acted reasonably in attempting to discover the truth or falsity or the defamatory character of the publication.” Id. (citing Jacron Sales Co. v. Sindorf, 276 Md. 580, 597, 350 A.2d 688, 698 (Md. Ct. App. 2007); Restatement (Second) of Torts § 580B, cmt. I, cmt. F (1977))).

For example, if an individual publishes statements from a “disgruntled ex-employee” “without seriously attempting to verify them,” the individual “failed to use that amount of care which a reasonably prudent person would use under like circumstances.” Id. at 316, 560 P.2d at 1223. 

Notably, “the requirement to prove negligence or greater fault in relation to the defendant’s knowledge of the falsity of the statement, ‘has, as a practical matter, made it necessary for the plaintiff to allege and prove the falsity of the communication, and from a realistic standpoint, has placed the burden of proving falsity on the plaintiff.’” Holm v. Lincoln & Cont’l Owners Club, 2 CA-CV 2010-0035, ¶ 14, 2010 WL 3894623, ¶14 (Ct. App. Oct. 5, 2010) (citing Restatement (Second) of Torts § 613 cmt. j (1977)). “Thus, although the burden of proving truth as an affirmative defense may remain on the defendant, a plaintiff may also bear some burden to prove the falsity of a defamatory statement in the course of proving negligence.” Id.

A plaintiff must prove the defamatory statement caused actual damages in order to recover in a defamation claim. In a defamation per se claim, proof of actual damages is not required as damages will be presumed. Allen v. Ariz. Dep’t of Corr., 1 CA-CV 07-0242, 2009 WL 2382026 (Ariz. Ct. App. Aug. 4, 2009) (citing Boswell v. Phx. News., Inc., 152 Ariz. 1, 6 n. 4, 730 P.2d 178, 183 n. 4 (Ct. App. 1985)). In addition, “a publication which impeaches the honesty, integrity, or reputation of a person, or which is damaging to his professional reputation is [defamatory] per se and presumptive damages may be awarded without proof of special damages.” Hirsch v. Cooper, 153 Ariz. 454, 458, 737 P.2d 1092, 1096 (Ct. App. 1986) (citing Peagler, 114 Ariz. at 316, 560 P.2d at 1223).

Arizona imposes a one year statute of limitations on all defamation claims. Ariz. Rev. Stat. 12-541(1). Therefore, a party must bring a defamation claim within one year upon learning of the defamatory statement.

There are several defenses that can possibly be used to defend against a defamation action: absolute privilege, qualified privilege, truth, and pure opinion. 

Absolute privilege constitutes an absolute defense by “protecting the speaker regardless of his ‘motive, purpose, or reasonableness.’” Burns, 196 Ariz. at 159, 993 P.2d at 1123 (citing Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984)). The rationale behind an absolute privilege is “based upon the recognition that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interest.” Lewis v. Oliver, 178 Ariz. 330, 333, 873 P.2d 668, 671 (Ct. App. 1993) (citing Green Acres Trust, 141 Ariz. at 612-13, 688 P.2d at 620-21)). “For an absolute privilege, [] the socially important interest protected by the speaker is of heightened importance.” Burns, 196 Ariz. at 161, 993 P.2d at 1125; see Green Acres Trust, 141 Ariz. at 613, 688 P.2d at 621 (affording absolute privilege for “socially important interests” regardless of speaker’s motive, purpose or reasonableness). 

For example, an absolute privilege extends to complaints made to quasi-judicial bodies, such as a judicial commission or the State Bar of Arizona. See Bailey v. Superior Ct., 130 Ariz. 366, 636 P.2d 144 (Ct. App.1981) (holding that a complaint made to a judicial commission established to inquire into conduct of judges was absolutely privileged); see Drummond v. Stahl, 127 Ariz. 122, 618 P.2d 616 (Ct. App. 1980) (holding that a complaint made to the State Bar of Arizona about a lawyer’s unethical conduct was absolutely privileged). Notably, however, the absolute privilege does not apply in administrative proceedings. Oliver, 178 Ariz. at 334, 873 P.2d at 672 (citing Melton v. Slonsky, 19 Ariz. App. 65, 504 P.2d 1288 (Ct. App. 1973).

On the other hand, a qualified privilege “does not provide an absolute defense.” Burns, 196 Ariz. at 159, 993 P.2d at 1123. In regards to a qualified privilege, “the interest that the speaker seeks to vindicate is of an ‘intermediate degree of importance’ in relation to protection of the defamed person’s reputation.” Id. (quoting Green Acres Trust, 141 Ariz. at 616, 688 P.2d at 624). Appropriately, “a conditional privilege allows for the balancing of competing interests. It is a method ‘for balancing the interest of the defamed person in the protection of his reputation against the interests of the publisher, of third persons and of the public in having the publication take place.”’ Burns, 196 Ariz. at 163, 993 P.2d at 1127 (citing Restatement (Second) of Torts § 594 cmt. b (1977)). 

Arizona courts have “establishe[d] a two-part analysis for determining whether a qualified privilege exists.” Holm, 2 CA-CV 2010-0035, ¶ 18, 2010 WL 3894623, ¶ 18. A court must “determine whether a privileged occasion arose, and, if so, whether the occasion for the privilege was abused.” Id. (citing Green Acres Trust, 141 Ariz. at 616, 688 P.2d at 624). Indeed, “[a]bsent a proper purpose or reasonable manner of publication, the defense fails. The privilege give[s] protection from liability only when exercised for the purpose for which [it] is given and with reasonable care that no more harm shall be done to the interests of others than is necessary to accomplish the end for which the privilege is given.” Oliver, 178 Ariz. at 334, 873 P.2d at 672 (citing Green Acres Trust, 141 Ariz. at 616, 688 P.2d at 624)); see Burns, 196 Ariz. at 159, 993 P.2d at 1123 (noting that “a qualified privilege protects the speaker only for those statements made in good faith”). Thus, “in order to avoid forfeiture of the privilege, the [statement] must have some relation to the subject [matter] and should be made primarily for the purpose of furthering the public interest entitled to protection.” Burns, 196 Ariz. at 164, 993 P.2d at 1128.

“A plaintiff may establish abuse of a conditional privilege by showing either (1) actual malice, i.e., with knowledge of its falseness or with reckless disregard of whether it was true or not; or (2) excessive publication, i.e., publication to an unprivileged recipient not reasonably necessary to protect the interest upon which the privilege is grounded.” Oliver, 178 Ariz. at 335, 873 P.2d at 673 (citing Green Acres Trust, 141 Ariz. at 616, 688 P.2d at 624)). In this context, the plaintiff must establish actual malice or excessive publication with “clear and convincing evidence.” Starkins v. Bateman, 150 Ariz. 537, 546, 724 P.2d 1206, 1215 (Ct. App. 1986) (citing New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964))). 

Truth is also an absolute defense to an allegation of defamation. “If an allegedly defamatory statement is substantially true, it provides an absolute defense to an action for defamation.” Fendler v. Phx. News., Inc., 130 Ariz. 475, 479, 636 P.2d 1257, 1261 (Ct. App. 1981) (holding that a newspaper article was ‘“substantially true’” even though it incorrectly claimed the recently convicted plaintiff was incarcerated when in fact he had been released due to his pending appeal and payment of bond). Notably, “[w]here the underlying facts are undisputed, the determination of substantial truth is a matter for the court.” Id. at 480, 636 P.2d at 1262.

Lastly, in brief, as discussed supra, “pure opinion is not actionable in Arizona.” Glaze, 151 Ariz. at 540, 729 P.2d at 344 (citing Restatement (Second) of Torts § 566 (1977)).

If the plaintiff in a defamation case is a public figure or public official, “the plaintiff must establish by clear and convincing evidence that the publication was made with actual malice.” Starkins, 150 Ariz. at 546, 724 P.2d at 1215 (citing Sullivan, 376 U.S. 254, 84 S.Ct. 710)). “A statement is made with actual malice when the declarant makes the statement with knowledge that it was false or with reckless disregard for the truth.” Morris v. Warner, 160 Ariz. 55, 63, 770 P.2d 359, 367 (Ct. App. 1988) (citing Sullivan, 376 U.S. at 279-80, 84 S. Ct. at 726); see Xcentric Ventures, LLC v. Brewington, 1 CA-CV 11-0042, 2011 WL 6747458 (Ct. App. Dec. 22, 2011) (reasoning that actual malice means the defendant knew the statement was false or acted in reckless disregard for its truth (citing Currier v. W. News., Inc., 175 Ariz. 290, 292, 855 P.2d 1351, 1353 (1993); Restatement (Second) of Torts § 580A (1977))). 

The two-pronged test for determining whether an individual is a public figure was elicited by the Supreme Court of the United States. “In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.” Dombey, 150 Ariz. at 480-81, 724 P.2d at 566-67 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3013 (1974)). Thus, the determination of whether an individual constitutes a public figure will be determined by the specific circumstances of each case.

In summary, a defamation claim will arise when an individual publishes, i.e., communicates to a third party, a false and defamatory statement while knowing the statement was false, recklessly disregarding the veracity of the statement, or negligently failing to ascertain the truth of the statement.