“Hear no evil, speak no evil, and you won’t be invited to cocktail parties.”
― Oscar Wilde.
A defamation lawsuit “compensates a plaintiff for damage to reputation or good name caused by publication of false information.” 9A Ariz. Prac., Business Law Deskbook § 33:5 (2022). A publication generally falls into one of two categories, libel (written) or slander (spoken). A defamation occurs when published information is false. Thus, truth is a defense to the claim.
Defamation is an area of the law that generates a great deal of interest and volatility. In Arizona, the defamation of a private (non-public) figure requires five elements:
- The Defendant made, said, or wrote a defamatory statement of fact about the Plaintiff;
- The statement was false;
- The Defendant made, said, or wrote the statement to a third person;
- The Defendant was negligent in failing to determine the truth of the statement; and
- The Defendant’s statement caused the Plaintiff to be damaged.
Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309 (1977); see also, Arizona Pattern Jury Instruction, (Civil) Defamation 1B (7th ed). It is important to note that a statement related to a private individual is subject to the negligence standard, meaning a defendant did not use reasonable care when making a statement about the Plaintiff to a third person. In addition, statements of fact often spill over into opinions. There are sometimes disputes over whether a statement is one of fact or opinion.
Statements directed at a public figure are subject to the actual malice standard, meaning those statements are only defamatory if a Plaintiff can prove by “clear and convincing evidence that […] at the time the statement was made, said, or written [the Defendant] knew that the statement was false or acted in reckless disregard of whether the statement was true or false.” New York Times v. Sullivan, 376 U.S. 254 (1964); see also, Arizona Pattern Jury Instruction, (Civil) Defamation 1A (7th ed). While some public figures are easy to identify in litigation (ie. celebrities and well known politicians), in some cases the task of determining whether a Plaintiff is a public figure is “much like trying to nail a jellyfish to the wall.” Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 483 (1986). Generally, a plaintiff is a public figure for purposes of defamation “if he thrust[s] himself or his views into public controversy to influence others.” Id. at 483; citing, Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979).
Any claim for libel or slander must be “commenced and prosecuted within one year after the cause of action accrues.” A.R.S. § 12-541(1). In some cases, when an action “accrues’ is a complicated issue and numerous court cases have addressed this issue. Generally, the “statute of limitations for a defamation action begins to run upon publication of the defamatory statement.” Larue v. Brown, 235 Ariz. 440, 443 (Ct. App. 2014).
Defamation Per Se
In certain cases, a Plaintiff does not need to offer proof of any specific damages or injury are presumed. These claims are known as defamation per se. In Arizona, a defamation per se arises where an alleged defamatory statement imputes to the plaintiff:
(1) a criminal offense punishable by imprisonment or regarded by public opinion as involving moral turpitude;
(2) an existing sexually transmitted disease or other loathsome and communicable disease;
(3) unfitness for the proper conduct of his lawful business, trade, or profession, or
(4) serious sexual misconduct.
Green Acres Trust v. London, 142 Ariz. 12, 22 (App. 1983), aff’d in part and vacated in part, 141 Ariz. 609 (1984); see also, Restatement (Second) of Torts §§ 570–574.
For obvious reasons, statements in these categories are particularly injurious to an individual’s reputation and professional standing. There have recently been a number of high profile cases involving celebrities and politicians, as well as private individuals bringing defamation per se claims to vindicate themselves from allegations of sexual misconduct. Defamation per se claims can result in substantial awards. Professionals, such as real estate brokers should be aware of these claims, particularly under category three regarding fitness for a particular profession. They should also be mindful of slanderous remarks in emails, text messages and other published communications.
Periodicals and Broadcasts
In Arizona, suits for defamation are subject to the state’s version of the Uniform Single Publication Act which restricts to one cause of action any claim for libel or similar claims founded on a single publication:
“No person shall have more than one cause of action for damages for libel, slander, invasion of privacy or any other tort founded upon a single publication, exhibition or utterance, such as any one edition of a newspaper, book or magazine, any one presentation to an audience, any one broadcast over radio or television or any one exhibition of a motion picture …”
A.R.S. § 12-651(A). This rule limits a claim for defamation to one cause of action rather than limitless numbers of suits for the publication of an alleged defamatory statement in a periodical or broadcast that could reach millions of people. There are numerous rules and legal doctrines related to alleged libel made in a television or radio broadcast, sometimes called a “defamacast,” as well as numerous statutes and rules related to statements made on the internet and social media platforms. Entire legal textbooks have been written to address potential liabilities associated with statements made on the internet.
Related Claims for False Light
A related action in Arizona is referred to as a “false light” claim. This type of claim is typically tied to an invasion of privacy. Privacy interests in Arizona were expressly recognized in Arizona as early as the writing of the state’s Constitution. Ariz. Const. art. II, § 8 (“[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”) Although both defamation and false light invasion of privacy involve publication, “the nature of the interests protected by each action differs substantially.” Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341 (1989); see also, Prosser & Keeton § 117, at 864. Defamation and false light actions are “separate and distinct” 53 C.J.S. Libel and Slander, Injurious Falsehood § 2. Unlike a defamation action, a privacy or false light action “does not protect reputation but protects mental and emotional interests [such as] the injury to the feelings of the plaintiff, the mental anguish and distress caused by the publication.” Supra., Godbehere, 162 Ariz. 335, 341; Reynolds v. Reynolds, 231 Ariz. 313, 318 (Ct. App. 2013).
A false light claim is broader than a defamation claim because “even a true statement may form the basis for false light liability if it creates a false implication about the person.” Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 580 (Ct. App. 2015). To establish a claim for false light invasion of privacy, “a plaintiff must show (1) the defendant, with knowledge of falsity or reckless disregard for the truth, gave publicity to information placing the plaintiff in a false light, and (2) the false light in which the plaintiff was placed would be highly offensive to a reasonable person in the plaintiff’s position.” Id. at 580.
Rules concerning false light actions, especially with regard to the truthfulness of statements and suits against public figures can be very nuanced and complicated. An attorney involved in a false light claim should have a substantial knowledge base in this area and experience in large complex trials.
Defamation is a complex and evolving area of the law. The distinctions regarding public figures, actual malice and defamation per se are important. Highly experienced litigation counsel with trial experience can assist you in navigating these issues. In any consultation with an attorney, you should always ask about their experience in court with large, high profile claims.
Timothy Watson is the co-chair of the commercial litigation and trial practice group at Provident Law®. He is a trial advocate with more than 24 years of experience in high profile, high value litigation. He has successfully tried numerous cases in state and federal courts including multi-million dollar claims in the areas of business litigation, real estate, high net worth probate, injury and insurance matters. He holds a Martindale Hubbell peer review rating of AV-Preeminent with high ethical standing. In addition to representing clients in large, complex litigation, Mr. Watson provides mediation and arbitration services. He can be reached at: Tim@ProvidentLawyers.com or at 480-388-3343.
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