Academic journal article Journal of Law, Technology and the Internet

Battery 2.0: Upgrading Offensive Contact Battery to the Digital Age

Academic journal article Journal of Law, Technology and the Internet

Battery 2.0: Upgrading Offensive Contact Battery to the Digital Age

Article excerpt

Table of Contents  I. INTRODUCTION II. BATTERY ELEMENTS AND APPLICATION TO CYBER-BATTERY TORT    A. Act    B. Intent    C. Offensive Touching    D. Causation    E. Lack of Consent    F. Lack of Privilege    G. Damages III. PSYCHOLOGY--ESTABLISHING "OFFENSIVE" CONTACT THROUGH  EXPERT TESTIMONY    A. Cyber-touching can Meet the Required 'Touching'     Standard Under the Restatement    B. The Object of a Cyber-touching can be Customarily Regarded     as Part of the Plaintiff's Person IV. EXPERT TESTIMONY V. CONCLUSION 

I. INTRODUCTION

Under the law of torts, prospective plaintiffs have numerous causes of action for various physical harms that confront people daily. As technology advances, people are increasingly confronted with a wide range of digital actions that were unanticipated by early tort law--digital actions that cause a person to suffer real-world physical harm.

In response, courts have begun tailoring traditional tort principles to protect against harmful online activities. For example, in 1998 a plaintiff successfully sued Continental Express after a pilot took a photo of the plaintiff and superimposed the plaintiffs face onto online nude photographs. (1) In 2000, EBay won a trespass to chattel judgment against Bidder's Edge after Bidder's Edge used spiders to data mine EBay's website. (2) Online cyber-harassment claims have also led to positive results for plaintiffs by providing relief to plaintiffs who suffered real-world harm from a defendant's online actions. (3)

Some scholars still argue that limitations exist on the application of current tort law to harmful online activities. Benjamin Duranske, for example, argues that certain limitations currently prevent the application of traditional touch-based torts to online conduct. (4) In analyzing the possibility of online touch-based torts, Duranske maintains that such torts are barred by concepts such as the doctrine of consent (5) or the "magic circle" (6) of play theory. (7) Duranske's argument is elegantly summarized:

    No matter how dangerous a sword-swinging Level 70    Night Elf appears in World of Warcraft, he can't really    hurt the physical player behind the keyboard, and    everyone knows that. The same is true regarding    periodic claims of 'virtual rape.' No matter how    offensive, objectionable, and wrong it may be for    someone to cause an unwanted sexual animation or text    involving a user's avatar to appear on that user's    computer screen, it simply does not meet any state's    legal definition of "rape".... [A]ctual, actionable    assault and battery that require physical contact are    simply not possible in virtual worlds and games. At least    not yet. (8) 

Duranske is correct that cyber-battery theory does not apply (except in limited circumstances) to online games such as World of Warcraft, where touching that might give rise to the tort is almost always consensual. Yet even Duranske recognizes that free-form social worlds are governed differently than a game environment such as Ultima Online or World of Warcraft. (9) People who participate in free-form social worlds could apply tort law to protect themselves against harms suffered online. However, these tort principles need not be limited, and could potentially protect people engaging in a wider variety of online activity.

People who engage in online activities are potentially affected by a digital harm. Though these individuals may suffer relatively minor physical injury, they may suffer incredibly intense psychological injury as a result of the harmful conduct. Current tort law provides these individuals only minimal options, if any, to redress the harm they suffered, and current criminal law may provide no options at all.

For instance, if a person hacks into another's personal website, Facebook account, or Second Life account, courts may find him criminally liable for unauthorized use of a computer or hacking, and may suffer a criminal penalty. …

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