Social media raises tricky questions that judges are beginning to try to answer. It has been found possible to violate a restraining order by becoming an unwanted Instagram , or or a Facebook post. In another instance, a US plaintiff was permitted to serve of a lawsuit against a foreign defendant through a tweet.
But what about crimes of violence? Could someone commit criminal assault with a tweet? The question arises in the recent discussion by journalist Kurt Eichenwald of the Twitter threats he has received from Trump supporters.
After Newsweek published his investigating the complicated relationships the Trump Organization holds with foreign governments and business interests, Eichenwald received numerous responses on Twitter, many of them not only critical but threatening. One stood out, leading Eichenwald to write a new .
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The tweet (since deleted) referred to Eichenwald鈥檚 epilepsy and included an embedded video. When Eichenwald played the video, he writes, he instantly identified it 鈥 complete with flashing lights and images 鈥 as an , or seizure-triggering, video. He dropped his iPad as soon as he recognised the video鈥檚 characteristics.
Trump supporters have sent death threats, mockery and anti-Semitic imagery to journalists asking questions about Donald Trump鈥檚 finances, taxes, charitable giving and ties abroad.
Twitter troll
The doesn鈥檛 apply to Twitter, a private company, but many of these disturbing tweets could be analogised to protected hate speech. (And 鈥溾 can nonetheless be prohibited under the First Amendment.) Nearly all of them probably violate Twitter鈥檚 .
In the case of the epilepsy triggering video, however, the person who trolled Eichenwald may have committed criminal assault.
In the physical world, most US states define the crime of assault as either 1) the attempt to commit a battery (an unlawful application of force to another person), or 2) the intentional creation of a reasonable apprehension of imminent bodily harm. If A points a loaded gun at B, that qualifies as a criminal assault under the first definition. If A points an unloaded gun at B and succeeds in convincing B that they are about to be shot, that is also an assault under the second definition.
Mere words, such as a verbal threat alone, don鈥檛 usually 聽constitute a criminal assault. But words by themselves can be a weapon in the right circumstances. In one influential legal commentator鈥檚 example, if A tells B, who is blind and walking towards a cliff鈥檚 edge, to 鈥渒eep going鈥 and B nearly falls over the edge, that鈥檚 an assault.
The Trump troll did more than send a verbal threat. The seizure-causing nature of the embedded video seems to have been intentional, not accidental. When reports surfaced in the 1990s that some with flashing lights were triggering seizures, no one suggested that these videos were intentionally designed to do so. But this is different: Eichenwald has been open about his epilepsy, and the tweet appears to have been intended specifically for him to view rather than a general tweet complaining about him.
Loaded gun
The tweet no longer exists, but Eichenwald鈥檚 statement that he 鈥渞eceived鈥 the tweet suggests it was posted to his @kurteichenwald Twitter handle. The entire point of the tweet, it seems, was either to cause harm to Eichenwald or to make him fearful. Whether Eichenwald actually had a seizure 鈥 which doesn鈥檛 seem to be the case 鈥 is irrelevant.
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 have been the same. After all, not all weapons are guns.
It鈥檚 the same thing with the tweet 鈥 the distance doesn鈥檛 change the analysis. For instance, the intentional hacking of a networked connected medical device, like an insulin pump, resulting in a person鈥檚 would be criminal homicide even if the perpetrator were hundreds of kilometres away.
Finally, a separate question raised by Eichenwald鈥檚 troll is whether Twitter itself faces any potential liability. of the Communications Decency Act provides broad protection from civil liability to online intermediaries for the content posted by third parties. Specifically, Section 230 states that no 鈥減rovider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider鈥.
Such legal protections permit services like Facebook, Twitter and Craigslist to avoid being shut down for any of its user-generated content. That protection, of course, doesn鈥檛 free them from social and political pressures to protect members from abusive or intimidating comments.
What is clear, however, is that the existing tools of criminal law probably do address a tweet that appears intended to harm its recipient or to create a reasonable apprehension of fear in them.
The law continues to be flexible enough to identify social harms that seem novel but harm people in familiar ways, whether it鈥檚 murder by a driverless car, or assault by tweet.
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