§ 6.4.4.5.4 ACTUAL MALICE AND PRIVILEGES

• Jurisdiction: Arizona

§ 6.4.4.5.4 Actual Malice and Privileges. The third way that the higher standard of "actual malice" can be required is by a "qualified" or "conditional" privilege. Those terms have been used interchangeably by the courts.⁷¹ Such privileges have been found from many circumstances where there is some societal interest in protecting the communication, including:

(1) Statements made by speakers who communicate information within a private organization about the organization's affairs.⁷²

(2) Statements made by union officials acting pursuant to official duties.⁷³

(3) Statements contained in public records that are required to be kept by public officers in furtherance of their statutory duties.⁷⁴

(4) Statements made to others who share a common interest in the subject matter of the communication.⁷⁵

(5) Statements made to administrative agencies or licensing boards.⁷⁶

(6) Statements made by high-level executive government officials within the scope of their duties.⁷⁷

(7) Statements that are true and accurate reports of public proceedings.⁷⁸

(8) Statements made during most administrative proceedings.⁷⁹

The definition of actual malice was first adopted in New York Times v. Sullivan⁸⁰ and has been defined, since then, as requiring knowledge that a statement was false or making the statement with reckless disregard as to its falsity. In Dombey⁸¹ the Arizona Supreme Court questioned the "actual malice" terminology and suggested that the term "conscious disregard" would be more fitting. Although it coined the term, the United States Supreme Court has now held that the "better practice" is for a jury not to hear the term "actual malice" at all, but to instead receive instructions describing knowledge of falsity and reckless disregard.⁸²

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^[71] See, e.g., Ross v. Gallant, Farrow & Co., PC, 27 Ariz. App. 89, 91, 551 P.2d...