Eichenwald v. Rivello
318 F. Supp. 3d 766 (2018)
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Rule of Law:
An intentional act that causes a harmful or offensive physical contact with another person constitutes a battery, even if that contact is accomplished indirectly through an electronic device that emits intangible but physical elements like light particles.
Facts:
- Kurt Eichenwald is a journalist who has publicly disclosed that he has epilepsy.
- During the 2016 election, Eichenwald was an outspoken critic of then-candidate Donald Trump and received numerous online threats as a result.
- In October 2016, Eichenwald received a tweet containing a video with a strobe light intended to trigger a seizure, which he wrote about after avoiding harm by dropping his device.
- On December 15, 2016, John Rivello, using a different Twitter account, sent a tweet to Eichenwald containing a strobing Graphic Interchange Format (GIF).
- The GIF included the message, 'YOU DESERVE A SEIZURE FOR YOUR POSTS.'
- When Eichenwald viewed the tweet, the rapidly flashing light waves (photons) from the GIF struck his retina.
- Upon viewing the GIF, Eichenwald suffered a severe seizure, resulting in physical harm and emotional distress.
- A subsequent investigation revealed that Rivello operated the account and had communicated his intent to cause Eichenwald to have a seizure.
Procedural Posture:
- Kurt Eichenwald filed a civil complaint against John Rivello in the U.S. District Court for the District of Maryland, a federal trial court.
- Eichenwald's complaint included four counts: (I) battery, (II) assault, (III) intentional infliction of emotional distress, and (IV) purposeful infliction of bodily harm.
- The civil case was stayed pending the outcome of a related criminal proceeding against Rivello.
- The court partially lifted the stay, ordering Rivello to respond to the complaint.
- Rivello answered Counts II and III but filed a motion to dismiss Counts I (battery) and IV.
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Issue:
Does sending an electronic image (GIF) with the intent to cause a seizure constitute the element of physical contact required for a claim of battery under Texas law?
Opinions:
Majority - Bredar, Chief Judge
Yes, sending an electronic image with the intent to cause a seizure constitutes the physical contact required for a battery claim. Texas law defines battery as intentionally causing bodily injury or offensive physical contact. The court reasoned that physical contact need not be direct or made with a tangible object. Here, the defendant intentionally caused light waves—physical particles—to be emitted from the GIF and strike the plaintiff's retina, triggering a harmful electrical impulse in his brain and causing a seizure. This constitutes an indirect physical contact sufficient for battery, akin to using a poison, a sonic weapon, or a laser. The novelty of the technology does not change the fundamental nature of the tort, which is an intentional, unpermitted invasion of a person's physical inviolability.
Analysis:
This case is significant for extending the traditional tort of battery into the digital realm. It establishes that 'physical contact' can be accomplished through intangible means, such as light particles transmitted over the internet, when used with the intent to cause physical harm. The decision sets a crucial precedent for holding individuals accountable for weaponizing technology to inflict physical injury, signaling that courts are prepared to adapt long-standing legal doctrines to address new forms of harm. This ruling will likely influence future cases involving physical harm caused through electronic or other non-traditional means.
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