Defenses to a Defamation Claim\

A claim for defamation in Arizona requires that “One who publishes a false and defamatory communication concerning a private person . . . 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.” Rowland v. Union Hills Country Club, 157 Ariz. 301, 306, 757 P.2d 105, 110 (App. 1988), quoting Restatement (Second) of Torts § 580(B) (1977). The most common defense to a claim of defamation is that the communication was privileged, either due to an absolute privilege or a qualified privilege.

The requirements for determining whether an absolute or qualified privilege exists were discussed in the case of Burns v. Davis, 196 Ariz. 155, 993 P.2d 1119(App. 1999). In Burns, the plaintiff, Sedona Heights, LLC, sought a zoning variance in the city of Sedona. Some neighbors opposed the variance, and allegedly made defamatory statements during the Board of Adjustment meeting. The plaintiff filed a defamation suit, which was dismissed by the trial court due to a finding of absolute privilege.

On appeal, the court examined the question of whether an absolute or qualified privilege was appropriate during a zoning hearing. The court noted that a witness is generally given an absolute privilege against defamation during a judicial proceeding because witness must be allowed to speak freely, and may be required by law to testify. The court analyzed the indicia of a judicial proceeding present in a zoning hearing.

The court found that no subpoenas were issued in this case, and no oaths were taken at the zoning hearing. The parties did not face the risk of perjury or contempt for giving untrue testimony. The court therefore found that a qualified privilege existed, which allows for a balancing of the interests of the speaker and the defamed person.

This qualified privilege would apply if the communication was relevant to the subject proceeding and made primarily to further the public interest entitled to protection. If the privilege applied, it could still be defeated by showing an abuse of the privilege, either by showing excessive publication or the communication or actual malice.

Other defenses to a defamation include asserting the the communication was truthful or that is was a statement of pure opinion. However, a statement of opinion that implies a false assertion of fact can be defamatory.

Chernoff Law handles civil litigation cases throughout Arizona, including defamation claims. Contact us by calling 480-719-7307 to discuss your real estate matters.