There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
Fair Comment Privilege
In Arizona, the fair comment privilege “is limited to discussions of matters which are of legitimate concern to the community as a whole because they materially affect the interests of all the community.” Phoenix Newspapers, Inc. v. Church, 103 Ariz. 582, 595 (Ariz. 1968). If actual malice is shown, however, the privilege is defeated. Id.
The fair comment privilege protects both media and non-media defendants when the plaintiff is a public official. The Arizona Supreme Court ruled that regardless of the defendant's media status, "when the plaintiff is a public official and the speech is of public concern, [then] the plaintiff bears the burden of showing that a statement is provably false before an action for defamation can lie." Turner v. Devlin, 174 Ariz. 201, 205 (1993).
The Arizona Supreme Court in the past has also explicitly recognized pure opinion as protected speech. MacConnell v. Mitten, 131 Ariz. 22, 25 (1981) (finding a statement "was pure opinion and not actionable"). It is unclear whether this recognition survived Turner and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1993), however.
Fair Report Privilege
In Arizona, the precise scope of the fair report privilege, also known as the public records privilege, is not clear because there is only one case in which the Arizona courts have applied the privilege.