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Can You Sue Someone For A Tweet That Induces Epilepsy?

Can You Sue Someone For A Tweet That Induces Epilepsy

UPDATE (12/20/16): Eichenwald is following through. He filed a Rule 202 Petition for pre-litigation discovery in Texas. You can read it here.

In October of 2016, someone sent a Tweet to journalist Kurt Eichenwald (a known epileptic) that contained an animated gif of flashing images of the sort that often cause epileptics to have seizures. This was apparently done in retaliation to an article Eichenwald had written. Eichenwald wrote about the experience of receiving the Tweet in Newsweek:

I was carrying my iPad, looking at the still image on the video and, without thinking, touched the PLAY button.

The video was some sort of strobe light, with flashing circles and images of Pepe flying toward the screen. It’s what’s called epileptogenic—something that triggers seizures. Fortunately, since I was standing, I simply dropped my iPad to the ground the second I realized what Mike had done. It landed face down on the bathroom floor.

And apparently last night, December 15, 2016, someone again sent a Tweet with an flashing & strobing image, along with the message “you deserve a seizure.” In a now deleted Tweet, Eichenwald’s wife claimed:

The following day Eichenwald posted a series of Tweets beginning here (click through to read the full string of messages):

So that leaves us with the question:

Can You Sue Someone For A Tweet That Induces Epilepsy?

When this issue initially arose back in October of 2016, U.C. Davis law professor Elizabeth Joh discussed the issue at Slate,

Had this Twitter troll walked up to Eichenwald and pointed what appeared to be a loaded gun at the journalist, most would agree that the troll would be guilty of assault. Had the troll walked up to Eichenwald and surprised him with a tablet displaying the video, the result would likely be the same. After all, not all weapons are guns. It’s the same thing with the tweet—the distance does not change the analysis.

At Simple Justice, New York criminal defense lawyer Scott Greenfield discussed Joh’s scenario further:

This may not be the clearest exposition, and makes some fairly obvious conflations, but the point is that the delivery mechanism, the distance, the means, does not change the elements of the offence.

Nor is this about Twitter, but applicable to any social medium, and more generally, any malicious use of the internet…

This isn’t rick-rolling. Whether the video could trigger a seizure isn’t the point either. Nor does it matter that Eichenwald didn’t actually suffer the seizure, though he may have suffered iPad damage in the process of avoiding any potential harm.  The point is that Twitter had the potential to be used as a delivery mechanism for harm.

Greenfield more accurately framed the question “Can You Sue Someone For A Tweet That Induces Epilepsy?” as:

Can the mechanics of an internet medium serve as means of committing assault?

At Defending People, Texas criminal defense and free speech lawyer Mark Bennett explored the extent of the possible assault:

Weaponized tweets, resulting in physical harm, are cyberpunk stuff: long-distance brain hacking…

sending a link to an epileptogenic video to a journalist, the sender committed an assault: “intentional creation of a reasonable apprehension of imminent bodily harm.” An assault by threat, as we’d say in Texas — a class C misdemeanor, fine-only stuff….

But this assault on the journalist is interesting for another reason. It’s not only a threat to commit imminent harm — indeed, it’s arguably not even a threat to commit harm — but an attempt to cause bodily injury. That’d be a class B misdemeanor in Texas, with a maximum 180-day jail sentence and $2,000 fine. It’d be a third-degree felony — up to 10 years in prison — if the assailant intended to cause serious bodily injury.

Which transforms sending a blinking gif to someone from “haha, this will be funny,” to “oh shit, the FBI is at my door.”

Before we get too far afield, let’s get some common ground.  Using Greenfield’s question, we need to understand:

  • the mechanics of an internet medium
  • assault

Mechanics Of An Internet Medium

The word ‘mechanics,’ is commonly understood to mean:

  • the technical aspect or working part; mechanism; structure., or
  • (usually used with a plural verb) routine or basic methods,procedures, techniques, or details

As applicable to the Internet, this means:

The Internet is the global system of interconnected computer networks that use the Internet protocol suite (TCP/IP) to link devices worldwide. It is a network of networks that consists of private, public, academic, business, and government networks of local to global scope, linked by a broad array of electronic, wireless, and optical networking technologies.

What Constitutes Assault?

In most states, an assault/battery is committed when one person:

  1. tries to or does physically strike another, or
  2. acts in a threatening manner to put another in fear of immediate harm.

Many states declare that a more serious or “aggravated” assault/battery occurs when a person:

  • tries to or does cause severe injury to another, or
  • causes injury through use of a deadly weapon.

Assaults may also be pursued via civil means. That is, someone who commits an assault may be sued by the victim as well as prosecuted by the state for their crimes. Simply put, an assault is an intentional attempt or threat to inflict injury that places another person in fear of imminent bodily harm.1http://criminal.findlaw.com/criminal-charges/assault-and-battery-overview.html

Eichenwald Scenario

In the situation involving Eichenwald: were the mechanics of an internet medium (Twitter) able to act as a delivery system for an assault (an intentional attempt or threat to inflict injury that places another person in fear of imminent bodily harm)?

Given that the offending user (((Ari Goldstein))):

  1. Used the Twitter network system;
  2. to transmit/deliver an intentional attempt/threat;
  3. that they knew would be likely to inflict injury; and
  4. placed Eichenwald in fear of imminent bodily harm.

I’d say that it’s likely that Eichenwald has some merits to his claims.

Assumption Of Risk

Of course, it’s also arguable that Eichenwald assumed the risk of being exposed to epileptic inducing images and videos by using Twitter.

“Assumption of risk” is a commonly understood defense in torts, which bars or reduces a plaintiff’s right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his or her injury.2https://en.wikipedia.org/wiki/Assumption_of_risk

This video auto-played when I logged into Twitter.

The Twitter service regularly shows pictures, autoplaying videos, and autoplaying animated GIFS in users newsfeed. It’s an inherent part of the service. Using Twitter is not an “inherently dangerous activity” by itself. But given that Eichenwald is an epileptic, it is possible to argue that is might be so in this narrow, specific instance:

  1. Twitter regularly displays flashing and strobing images that have the potential to trigger epilepsy,
  2. Eichenwald was aware that Twitter functioned in such a way (this was the 2nd instance),
  3. Eichenwald, an epileptic, disregarded this knowledge  and continued to use the service, as such
  4. it could be argued that Eichenwald was assuming the risk by continuing to use Twitter.

This is further compounded by the fact that Twitter has an option to disable the auto-playing of media in its settings. Given that Eichenwald has been a user of the Service since 2010 and has composed nearly 50k Tweets, it is likely arguable that he should have known to use this option to prevent flashing images from showing up in his newsfeed.

That being said, assumption of risk only applies to tort law.

Twitter Liability?

A final question is what, if any, liability Twitter has in this scenario.

Fortunately, Twitter should be protected by 47 U.S.C. § 230 (Section 230) which states that:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230). In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do.

The protected intermediaries include not only regular Internet Service Providers (ISPs), but also a range of “interactive computer service providers,” including basically any online service that publishes third-party content.

Twitter exercised no control over the offending Tweet other than acting as an interactive computer service provider. As such, it did nothing to elevate its control of the message to elevate its status to that of a publisher.

The only way such a ridiculous scenario could happen is if the CEO of your huge Internet Media company was so incredibly stupid as to go into the database and manually re-write the comments of users to display new messages altering the intent of their original messages Reddit.

As that’s not the case here, Twitter doesn’t have anything to worry about.

Nothing New Under The…

All this is speculative of course. Delivery of assault across an internet medium is likely going to be viewed as somewhat of an issue of first impression before a court. As such, who knows what could happen. I think much will likely be bandied about by the distance involved but I don’t see that offering much defense. Just as someone can be held liable for a spring-gun despite being miles away, there is no reason to think that someone cannot be held liable for assault delivered electronically across great distances.

Regardless, the Eichenwald Scenario, if it is pursued, should offer law nerds ample fodder for discussion over the coming months.

Update 2: The saga continues! Click to read the next post in the “Twitter Assault” saga with information on current court order.

Update: Here is a report on Sudden Unexplained Death in Epilepsy. Which is apparently a thing that happens that I was unaware of. Shout out to the AM Slack.

References   [ + ]

29 comments

  1. Eichenwald’s description of the October incident indicates that he already had turned off autoplay: “I was carrying my iPad, looking at the still image on the video and, without thinking, touched the PLAY button.”

    Did he respond to that incident by turning autoplay on to increase his vulnerability? That would be truly insane. Presumably, it was still off yesterday, and he once again “without thinking, touched the PLAY button”. This is especially odd because the still of the GIF said “YOU DESERVE A SEIZURE FOR YOUR POSTS”, written in blue over a high-contrast red-and-yellow background pattern that almost makes your head hurt before it even starts moving. And yet, despite his experience, he pressed the damn start button again!

    • It definitely goes towards an “assumption of risk” defense if the case is pursued.

      • As lawyers, you guys are thinking Eichenwald’s goal is to win a case but all he really has to do is expose (((Jew Goldstein’s))) real name. Basically, Eichenwald just wants to dox who did it in order to deter future trolls from trying the same thing.
        From that perspective, do you believe Eichenwald has enough evidence to survive summary judgment and subpoena both Twitter & (((Jew Eichenwald’s))) ISP? The latter being only necessary if the user didn’t give Twitter his real name which I assume he didn’t since he named his Twitter account (((Jew Goldstein))).

        • Also, if the user used a VPN to block his real IP address, he might not be that easy to find without some type of criminal investigation.

          • I’m not a lawyer, but I can assure you that lawyers do think about things like whether a plaintiff’s real purpose is something other than what he proclaims to be seeking.

            I would say that regardless of the ultimate merits of the case, the ability of Goldstein to remain anonymous depends on a few things we don’t yet know:

            (1) How technologically sophisticated was his anonymity?
            (2) (if first answer is “not enough”) Is he smart enough to promptly seek good legal representation, even if he doesn’t have much money?
            (3) (if second answer, is “yes, but he’s poor”) Will quality pro bono (free) representation be forthcoming?

            If he wasn’t behind seven proxies, and he doesn’t seek representation or he does but can’t get any because he’s poor and nobody volunteers, then I’m guessing he will be outed in about a month.

          • Do you think Eichenwald will get a subpoena issued for the ISP?

        • That was my first thought also. The only thing that is as damaging as a criminal/civil lawsuit is the media being able to dig up dirt on someone and write about it. The media has destroyed plenty of lives with the stroke of a pen(keyboard)

      • Okay, so Eichenwald has now said he never knew about the option to turn autoplay off, and the December tweet autoplayed. He also said that he was using an Ipad for the October incident (when he “touched the PLAY button”) and was “sitting in front of his home computer” in December when the tweet autoplayed and triggered the seizure.

        This all actually checks out, because the Ipad twitter app does not autoplay GIFs and videos, even if the user account’s autoplay option (which determines desktop behavior) is still on.

        It’s still odd that the October incident didn’t cause him to do any research into how to protect himself, which probably would have quickly led to him learning about turning off autoplay.

        Sources:
        http://www.newsweek.com/epileptogenic-pepe-video-507417
        http://www.thedailybeast.com/articles/2016/12/20/inside-fox-news-war-on-newsweek-s-kurt-eichenwald.html
        https://twitter.com/kurteichenwald/status/811719308464230400
        https://twitter.com/kurteichenwald/status/811797655999381504

  2. In addition to (possibly, depending on the jurisdiction) Assault, it would probably fall into a “Harassing Communications” statute. Here is the statute from Kentucky (the state I’m most familiar with):

    525.080 Harassing communications.
    (1) A person is guilty of harassing communications when, with intent to intimidate,
    harass, annoy, or alarm another person, he or she:
    (a) Communicates with a person, anonymously or otherwise, by telephone,
    telegraph, mail, or any other form of electronic or written communication in a
    manner which causes annoyance or alarm and serves no purpose of legitimate
    communication;
    . . .
    (2) Harassing communications is a Class B misdemeanor.

    This is essentially the old telephone harassment statute broadly updated for the digital age. I’ve litigated a couple of these cases that awe based on emails or FB posts. (Typically for messages sent between exes where everyone was easy to ID and resided locally.) In practice, venue for a Harr. Comm. charge is typically based on where the sender was physically located when the message was sent. I suspect that if you could use the civil process to identify the sender and the location from which they sent the message, you could potentially get a prosecutor to charge based on the events described, and it wouldn’t involve any discussion of assumption of the risk. Though getting a county attorney interested in charging (and possibly extraditing) someone for a Class B misdemeanor might be tough.

    • The “Harassing Communications” issue is a good point, those type statutes had completely slipped my mind.

      Taken all together, it’s seems even more likely that the above scenario could be persued. It’s just a matter of whether or not it is actually pursued (by Eichenwald or authorities).

    • LOL! If this was ever enforced, Twitter would be shut down overnight. The wording “in a manner which causes annoyance or alarm and serves no purpose of legitimate
      communication” pretty much describes EVERY communication on Twitter.

    • The statute appears to be over-broad and infringe on freedom of speech. Say you post a public comment critical of Trump. The I post a reply defending him, which since I am on notice that you are a snowflake, I know will it annoy you. Mine, as does yours, serves no legitimate communication purpose since it may be assumed we both have closed minds on the subject. Are either of us communicating with “a person”, since yours is intended for public consumption and mine although in reply is also intended for the public? As the statute is written, I could be found to be breaking the law. If the statute is over-broad, it is void even in situations where the communication is private and intended to harass.

      • There is an issue for the state court when you assault one of their citizens with a seizure inducing image. They can issue a warrant for your arrest and whatever state you live in would be forced to honor it and have you arrested and extradited.

    • The problem with the statute that you are quoting is that it only covers intent to harass and not intent to cause physical harm. Inducing a seizure in someone can be fatal to that person and the wording of that statute mentions nothing about injuring or killing someone. If someone dies from a seizure caused by a distressing image that was sent to them, do you really think that is a Class B misdemeanor or something more serious?

  3. “In October of 2016, someone sent a Tweet to journalist Kurt Eichenwald (a known epileptic)” —
    I know he CLAIMS to be an epileptic, but has he ever released his medical records? Has anyone actually seen him have a seizure.

  4. I disagree. Intending to cause a seizure isn’t necessarily intending to cause bodily harm. Seizures that epileptics have due to strobing lights are pretty much harmless (unless you’re driving a car or something, but if he was surfing the internet while driving he would be breaking the law). Most people assume that seizures are incredibly dangerous and lead to brain damage or death because they look pretty scary and because of how they are portrayed in TV/movies. You mention SUDEP, but you forget to mention that it is considerably more common for someone to die due to the cause of the seizures (stroke, brain tumor, etc.) instead of the seizures themselves.

    Now I don’t really support jew-goldstein’s (the guy who sent the tweet) actions, but there were no damages. Eichenwald suffered no harm (it’s also been suggested that he didn’t even have a seizure), so I doubt he would win. Additionally, it appears as though he is not seeking criminal charges (possibly because he would be laughed out of the room). What jew_goldstein did was closer to blowing pollen in the face of someone with seasonal allergies causing them to sneeze a couple times than actual assault.

    • I think the point, and it’s absurd that as of my typing this an arrest has been made as there is NO way whatsoever to prove beyond a doubt that the harmed was using a device, or sitting at a display and was harmed specifically by this gif and nothing else. It is also peculiar that the alleged victims spouse got onto the alleged victims account to state that he had a seizure and that authorities were or are being notified, which is to say if someone other than the victim regardless of it being his wife has access to and can use his Twitter account then anyone could have been using the device at this time this harm allegedly occurred or sitting at a display.

    • Umm… if you fall down and fracture your skull as a result of the seizure, it can be fatal. Also, in this day when everyone has a mobile device, he could have viewed that image from anywhere. He could have been walking across a foot bridge and fell over the side and died. He could have fallen into water deep enough to drown him. He could have fallen off the curb and been struck by a vehicle and killed. You don’t have to be sitting at home.

  5. I also forgot to mention that IP address is not equivalent to a name. I recall a case where the RIAA (or similar group) was attempting to sue a music pirate, but the court ruled that his IP address did not implicate him as the person committing the piracy. I imagine that this could make it difficult for Eichenwald to identify any one person as jew_goldstein.

  6. It cannot be proven that the harmed was actually harmed by this event and this event alone and that the alleged offender was the individual who actually sent the allegedly allegedly harmful gif.

  7. Well turns out they arrested a suspect.

  8. I’m saddened to learn that Kurt is still breathing.

  9. Kelly Lauren Thompson

    twitter has a lot of meanies.

  10. I would think that it does constitute an assault since the sending of the file was intended to cause physical harm or induce fear of physical harm in the intended victim. It does not matter if the person is standing next to the victim or is hundreds of miles away. Federal laws may also come into play because state lines are being crossed.

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