Battery in the Age of Technology

By Danny Lynch, Staff Writer

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The rapid growth of technology enables us to communicate with one another across the world at the touch of a button. With the expansion and accessibility of social media, we are sharing our lives and experiences in an instant. We post thoughts of prayer, intimate moments, and innate thoughts; we send inappropriate jokes to each other and just maybe a highlight from a Pirates game. However simple it is to share something positive, it is just as easy to send something offensive. 

Within the realm of tort law, the first image that springs to mind when it comes to battery is a physical altercation between two people that results in intentional or incidental contact.  However, advances in technology, especially with social media, have presented a new legal issue: can a battery be committed through a phone screen?

A leading case is Eichenwald v. Rivello.[1] Eichenwald was epileptic, and Rivello was aware of this as the Plaintiff was public about his health.[2]  Rivello chose to send a graphics interchange format (“GIF”) of strobe lights via Twitter to Eichenwald.[3]  The GIF also included the text, “YOU DESERVE A SEIZURE FOR YOUR POSTS.”[4] Upon receiving the message on Twitter, Eichenwald suffered a serious seizure.[5]

The facts of the case are not in dispute.  The issue in question is whether sending a GIF directly to someone with or without the intent to harm constitutes battery.  Battery is defined as an unlawful application of force, directly or indirectly, to another person that results in injury or unwanted contact.[6]  Is such a message an ‘application of force?’  Would a reasonable person consider the message injurious?

In Eichenwald, sending the GIF is the act Rivello committed upon Eichenwald.[7]  Since Rivello knew that Eichenwald suffered from epilepsy making him subject to seizures[8], and the words placed on the GIF were so egregious, inclusion of the strobe lights was an intentional act, it can be inferred that this was an action that was conducted with the intent to cause harm to the receiving party.  Because Eichenwald suffered a seizure upon viewing the GIF, the action taken by Rivello is considered battery.[9]

With the tort of battery, there is an instrument used: a lingering touch, a closed fist, a hammer, and as we are going to see, a social media platform.  The platform on its own is not responsible for the actions taken by its users.  Regardless, the resulting bodily injury or offensive contact results in a battery.  As soon as the action includes contact, the action transcends from assault to battery. Can a person using social media on their phone send an offensive message with the intent to cause harm or offense be guilty of battery?  A reasonable juror may accept that conclusion.  On the other hand, that question is still being debated in the courts; but it does shine light on the way that social media and technology will affect how the law is applied. 

If the facts of a case prove that the sender had the intent to make bodily contact with the receiver, and the receiver suffered harm, then the elements of battery are present, whether the force was applied with a push or via an electronic medium. As it turned out, in Eichenwald, the Defendant was ordered to pay $100,000 in damages. As our technological abilities continue to advance, this case will likely have lasting effects on society, the law of battery, as well as the way policies and laws are written in the future.

[1]  Eichenwald v. Rivello, 318 F. Supp. 3d 766 (D. Md. 2018).

[2] Id. at 769

[3] Id.

[4] Id.

[5] Id.

[6] Restatement (Second) of Torts § 13 (Am. L. Inst. 1965).

[7] Eichenwald v. Rivello, 318 F. Supp. 3d 766 (D. Md. 2018).

[8] Id at 769.

[9] Id.

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