Trotter obtained an order of protection against his ex-wife Ms. Paiano and an injunction against harassment against her current husband Mr. Paiano based on allegations that the Paianos intentionally abused his pay-per-click online advertising to exhaust his advertising budget and prevent potential customers from viewing ads for his business.
The Paianos denied the allegations and separately requested hearings to quash the protective orders. Because the matters were related, the superior court consolidated the cases and set a hearing where Trotter testified that the suspicious exhaustion of his advertising budget coincided with arguments between him and the Paianos. He admitted evidence of profane emails exchanged with the Paianos, police reports, and internet traffic information that indicated unusually large numbers of clicks originated near the Paianos’ workplaces and Ms. Paiano’s grandmother’s home.
After the hearing, the superior court upheld both the order of protection and the injunction against harassment based on what it described as “sufficient circumstantial evidence” that the “Defendant was, in fact, engaged in the ad-clicking alleged in an attempt to anonymously harass and harm [Trotter] financially.” The order also noted that the superior court found the emails constituted additional harassment.
The Paianos appealed.
Orders of protection and injunctions against harassment are distinct types of protective orders available under Arizona law. One of the key differences is usually the relationship between the parties. An order of protection requires the parties to be more closely related than an injunction against harassment.
Pursuant to A.R.S. § 13-3602, an order of protection may be obtained if there is reason to believe that an individual has committed an act of domestic violence within the past year or is likely to commit an act of domestic violence in the future. The term domestic violence is broadly interpreted to include acts of physical violence “as well as harassment by verbal, electronic … telephonic or written communication.” A.R.S. § 13-2921(E) further defines harassment as “conduct that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person.”
As its name implies, an injunction against harassment may be obtained if there is reason to believe that an individual harassed another person, using the same definition provided above with the added caveat that the harassing conduct serves no legitimate purpose.
Sufficiency of Evidence
The Paianos first argued that there was no evidence to definitively link either of them to the IP addresses Trotter identified as the source of the clicks. The Court of Appeals interpreted this argument to misapply the appropriate burden of proof.
For most civil claims, including orders of protection and injunctions against harassment, the burden of proof is “preponderance of the evidence.” This requires litigants only to prove that a specific claim or fact is more likely than not true. Most civil claims do not require definitive evidence and these cases, especially in family court, often are determined by witness credibility.
Here, the superior court could uphold both protective orders as long as Trotter proved that the Paianos were more likely than not responsible for the harassment. Even though the evidence Trotter presented was circumstantial, it was sufficient to prove that more likely than not that the Paianos were involved.
The Paianos also argued that the emails could not constitute harassment because they involved legitimate discussions. They used case law to support their contention that harassment may only occur “where parties receive unwanted communications to which they do not respond or after they have [been] told to stop.”
The Court of Appeals rejected this argument and reasoned that there is no fixed threshold for what can and cannot constitute harassment. Even if it was true that the emails did involve some legitimate discussions, those could be separated from the profane diatribes that constitute harassment. The Court of Appeals further explained that individuals cannot insulate themselves from harassment claims by packaging abusive language with otherwise legitimate discussions.