Under Arizona law, a Plaintiff must allege four elements to assert a claim for defamation:?
a) the defendant made false and defamatory statements about the Plaintiff;
b) the defendant made an unprivileged publication of those statements to a third party;
c) the defendant was negligent in making the publication (unless the defendant is a public figure, in which case the defendant had to act with actual malice)
d) the Defendant suffered damage from the publication.
When the statement is a matter of opinion, the Plaintiff will lose
If the statement is a matter of opinion, it can not be defamatory as a matter of law. Whether a statement is one of fact or opinion is a determination to be made by the Court. Yetman v. English, 168 Ariz. 71, 79, 811 P.2d 323, 331 (Ariz. 1991); State Farm Ins. Cos. v. Premier Manufactured Sys., Inc., 213 Ariz. 419, 142 P.3d 1232, 1234 (Ariz. App. 2006).
How do Arizona courts differentiate factual statements from opinion in defamation cases?
Arizona recognizes that opinions are non-defamatory when they "state matters that are not susceptible to proof of truth or falsity and because they state matters that cannot reasonably be interpreted as actual facts." Turner v. Devlin, 174 Ariz. 201, 209, 848 P.2d 286, 294 (Ariz. 1993). Thus, if a statement has only subjective meaning, and cannot reasonably be shown to be true or false, it cannot be defamatory. Courts apply a four-part test for assessing whether a statement is one of fact or opinion: a) "the specific language used"; b) "whether the statement is verifiable"; c) "the general context of the statement," and; d) "the broader context in which the statement appeared." Milkovich v. Lorain Journal Co., 497 U.S. 1, 9 (1990); See Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984); Amcor Inv. Corp. v. Cox Ariz. Pubs., 158 Ariz. 566, 570, 764 P.2d 327, 331 (Ariz. App. 1988).
Determining the status of a statement as being factual or one of pure opinion is context-driven. The Court must give consideration "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 (Ariz. App. 1999); Bobolas v. Does, Case No. CV-10-2056-PHX-DGC 2010 U.S. Dist. LEXIS 110856 at *11 (D. Ariz. Oct. 1, 2010). "Sensitivity to the values of free debate requires an analysis not only of the words used but also the context in which they appear, as well as the entire circumstances surrounding the publication." Amcor Inv. Corp. v. Cox Ariz. Publications, 158 Ariz. 566, 569 (Ariz. App. 1988).
Whether you are a plaintiff or a defendant in a defamation case, it is important to differentiate false statements of fact from negative opinions. As a plaintiff, you do not want to bring a claim against negative opinions, as you will likely not prevail in the case, and you will simply give greater life to those opinions.
If you are a defendant, and you are sued based on negative opinions, the above primer will help you to begin how to understand how to mount your defense.
Defamation cases are not easy to litigate. You should not rely on this guide to try and handle a defamation case yourself. The above is more intended for you to bring to your existing counsel to give him or her a head start in managing your case. You are not my client unless you sign an engagement letter with my firm and pay a retainer.