A complaint to the R.O.C. is protected by a conditional privilege from a claim of defamation, but that privilege may be forfeited if the complaining party is found to have abused that privilege.  Specifically, once a claim has been made against the speaker and an immunity defense has been raised, defining the scope of a speaker’s immunity is a legal question for the court.  While an absolute privilege protects the speaker regardless of his or her motive, purpose, or reasonableness; the more limited qualified privilege is applicable in an R.O.C. complaint.

In general, Arizona law establishes a two-part analysis for determining whether a qualified privilege exists.  The court must first determine whether a privileged occasion arose, and, if so, whether the occasion for the privilege was abused.  Second, whether a privileged occasion arose is a question of law for the court, and whether the occasion for the privilege was abused is a question of fact.

In order to avoid forfeiture of the privilege through abuse, the testimony must have some relation to the subject proceeding and should be made primarily for the purpose of furthering the public interest entitled to protection.  Privilege may be forfeited if the statements are irrelevant in a defamatory matter which has no bearing on the matter under consideration; is made to any person other than those whose hearing of the matter is reasonably believed to be necessary or useful for furtherance of the public interest; or the publication is not made primarily for the purpose of furthering the public interest which is entitled to protection.

Moreover, Arizona courts have held that a plaintiff may establish abuse of a conditional privilege by demonstrating the existence of either excessive publication or actual malice.  An abuse through excessive publication results from publication to an unprivileged recipient not reasonably necessary to protect the interest upon which the privilege is grounded.  An abuse through actual malice occurs when the speaker makes a statement knowing it is false or with reckless disregard of whether it is false.  For example, even though qualifiedly privileged, statements at hearings are not protected if they become mere character assassination.

The burden falls on the plaintiff to show that a party abused this qualified privilege, and unless only one conclusion can be drawn from the evidence, the determination of the question whether the privilege has been abused is for the finder of fact or the jury.