HB 2394
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ARIZONA HOUSE OF REPRESENTATIVES
Fifty-sixth Legislature
Second Regular Session
House: MOE DPA 9-0-0-0
HB 2394: candidates; digital impersonation; injunctive relief
Sponsor: Representative Kolodin, LD 3
House Engrossed
Overview
An emergency measure that outlines the process for a person to bring an action for
declaratory and injunctive relief for a published act of digital impersonation.
History
Any person involved in legal documents such as deeds or contracts, or those impacted by
statute, municipal ordinance or agreements have the right to seek resolution for any
questions about the interpretation or validity of the documents. This legal process allows
them to obtain a formal declaration concerning their rights, status or other legal
relationships specified in those documents (A.R.S. § 12-1832).
There are three main evidentiary standards used in Arizona law: 1) proof beyond a reasonable
doubt; 2) proof by a preponderance of the evidence; and 3) proof by clear and convincing
evidence. The preponderance of evidence standard requires that the fact-finder determine
whether a fact sought to be proved is more probable than not. Clear and convincing evidence, by
contrast, reflects a heightened standard of proof that indicates that the thing to be proved is highly
probable or reasonably certain. The clear and convincing evidence standard is an intermediate
standard, between proof beyond a reasonable doubt and proof by a preponderance of the
evidence (Kent K. v. Bobby M., 210 Ariz. 279, 2005).
Provisions
1. Allows a person running for public office or any citizen of this state to take action for
digital impersonation within two years from the date that the person becomes aware, or
with reasonable diligence should have become aware, that a digital impersonation of the
person was published. (Sec. 1)
2. States that the remedy for the cause of action of digital impersonation is preliminary and
permanent declaratory relief except as otherwise provided in this section of statute. Sec.
1)
3. Requires, to prevail in a cause of action for digital impersonation, the plaintiff to prove
all of the following by a preponderance of evidence:
a) that a digital impersonation of the person was published without the person's consent;
and
b) that upon publication, the publisher did not reasonably convey to the audience that
the recording or image was a digital impersonation or that its authenticity was
disputed, or it was not otherwise obvious that the publication was a digital
impersonation. (Sec. 1)
☐ Prop 105 (45 votes) ☐ Prop 108 (40 votes) ☒ Emergency (40 votes) ☐ Fiscal Note HB 2394
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4. Specifies that if the digital impersonation is part of a paid advertisement, the cause of
action for declaratory judgement can only be brought against the person or entity that
originated, ordered, placed or paid for the advertisement. (Sec. 1)
5. Prohibits, for the purposes of this law, a provider of an interactive computer service from
being treated as the publisher or speaker of any information provided by another
information content provider.
6. Allows a person bringing an action for digital impersonation to petition the superior court,
within two business days after the petition is filed, for a preliminary judicial declaration
that a recording or image is a digital impersonation:
a) in the county the person resides;
b) in Maricopa County Superior Court if the person is a candidate for President; or
c) in any county in which one of the candidate's appointees for elector resides. (Sec. 1)
7. Mandates that preliminary declaratory relief can only be granted if the person proves by
a preponderance of evidence the elements of digital impersonation explained above and if
any of the following are met:
a) the person is a candidate for public office in an election that is scheduled within 180
days of the date that the relief is requested;
b) the digital impersonation depicts the person engaging in a sexual act or depicts
specified body parts of the person as unclothed;
c) the digital impersonation depicts the person engaging in a criminal act;
d) in the absence of expedited relief, it is reasonably expected that the person will suffer
significant personal or financial hardship or loss of employment opportunities;
e) in the absence of expedited relief, the persons reputation will be irreparably harmed;
or
f) the interests of justice otherwise require. (Sec. 1)
8. States that the publisher of the alleged digital impersonation has the right to appear, be
heard and present evidence prior to the court's entry of a preliminary declaratory
judgement. (Sec. 1)
9. Instructs the plaintiff to make all reasonable efforts to provide service and notice
immediately upon filing the complaint. (Sec. 1)
10. Prohibits the plaintiff from being entitled to taxable costs if the publisher does not appear
and no other party intervenes as a defendant. (Sec. 1)
11. Stipulates that actions in which the petitioner is a candidate, public official or public
figure are to be deemed as having been abated if the publisher does not appear and no
other party intervenes as a defendant within 30 days of the court's issuance of a
preliminary declaratory judgement. (Sec. 1)
12. Specifies that if this subsection or its application is held invalid, that invalidity must not
affect other provisions or applications of the act. (Sec. 1)
13. Entitles a person bringing an action for digital impersonation the right to recover
injunctive relief and damages if the following are met:
a) the digital impersonation depicts the person engaging in a sexual act or depicts
specified body parts of the person as unclothed;
b) the person was not a public figure at the time the cause of action accrued; HB 2394
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c) the elements of digital impersonation explained above are proven by clear and
convincing evidence; and
d) the person proves by clear and convincing evidence that the publication was made
with actual knowledge that the recording or image was a digital impersonation or, if
published without actual knowledge, the publisher failed to take reasonable corrective
action within 21 days after learning that the recording or image was a digital
impersonation. (Sec. 1)
14. Classifies reasonable corrective action as removing or disabling access to the digital
impersonation or publishing a statement that the publication was a digital impersonation
to the appropriate audience. (Sec. 1)
15. Prohibits any factual determinations made by the court in a request for preliminary relief
from being considered by the trier of fact at any later stage of the proceeding. (Sec. 1)
16. Adds that a parent or guardian of a minor child or incapacitated person can seek relief
under this section on the minor child's or incapacitated person's behalf. (Sec. 1)
17. Specifies that this section be construed in favor of free and open discourse on the matters
of public concern and artistic expression and should not be construed to deny any cause
of action otherwise available. (Sec. 1)
18. Stipulates that this section must not be construed to limit a party's constitutional right
to trial by jury. (Sec. 1)
19. Entitles both parties to actions seeking permanent declaratory relief the right to trial by
jury. (Sec. 1)
20. Defines the terms appear on the ballot in this state, digital impersonation, election,
information content provider, interactive computer service, public figure and public office.
(Sec. 1)
21. Contains an emergency clause. (Sec. 2)