Note: This page covers information specific to Arizona. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.
In both cases where Arizona courts have considered attempts to unmask an anonymous online speaker, Arizona courts have applied tests that are highly protective of anonymous speech. The two cases are discussed below:Mobilisa v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007)
In deciding whether to compel discovery, the trial court applied the "summary judgment" test from Doe v. Cahill, 884 A.2d 451 (Del. 2005). This standard requires a plaintiff to make reasonable efforts to notify the anonymous poster about the pending discovery request and to put forward sufficient evidence for each element of its claim (other than those that are dependent on knowing the identity of the defendant). Initially, the court ruled against Mobilisa, but several months later it determined that Mobilisa had made a sufficient showing to justify unmasking the anonymous defendant. The email provider and anonymous defendant appealed.
On appeal,the Arizona Court of Appeals adopted the "summary judgment plus" standard set forth in Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). There are two levels to this test. First, as in the summary judgment test, the plaintiff must put forward sufficient evidence to support its claim. Second, if the plaintiff has put forward enough evidence, the court then must independently balance the strength of the plaintiff's case and need for disclosure against the strength of the speaker's claim to First Amendment protection. Only if the plaintiff's interests outweigh the First Amendment values at stake should the court order disclosure. The appellate court indicated that the balancing test would consider "the type of speech involved, the speaker's expectation of privacy, the potential consequence of a discovery order to the speaker and others similarly situated, the need for the identity of the speaker to advance the requesting party's position, and the availability of alternative discovery methods." The court rejected Mobilisa's argument that a more lenient standard should apply because the lawsuit was based on a property claim (unauthorized "hacking" of a computer system) rather than defamation.
Applying this standard, the appellate court upheld the trial court's earlier determination that Mobilisa had produced sufficient evidence to pass the "summary judgment" test. It remanded the case, however, so that the trial court could apply the extra balancing test.Best Western International v. Doe, 2006 WL 2091695 (D. Ariz. 2006)
Best Western International (BWI) is a non-profit corporation whose members own and operate hotels under the Best Western name. Some of these members used a forum site -- www.freewrites.com -- to communicate amongst themselves, often anonymously. When BWI proposed some changes in company policy, a flurry of commentary went up on the forum. BWI sued the forum's anonymous administrator and several anonymous posters over messages on the site, which BWI claimed were defamatory, revealed confidential information, infringed Best Western's trademark, and harmed the company in a variety of other ways. BWI filed a motion for expedited discovery, requesting permission to serve subpoenas on various Internet service providers to uncover the identities of the anonymous defendants.
Following Doe v. Cahill, 884 A.2d 451 (Del. 2005), the court adopted a "summary judgment" standard and denied BWI's motion to expedite discovery. It concluded that BWI had not produced sufficient evidence to overcome the defendants' qualified First Amendment right to engage in anonymous speech. The court stressed that BWI had failed to identify a single false statement made by the anonymous defendants, a single item of confidential information posted on the site by them, or a single instance where BWI's mark was improperly used. The court left open the possibility that BWI could meet its required evidentiary showing on a renewed motion.