Online social media websites are frequently used to cyberbully others remotely, making it easier to taunt and send threats as the author hides behind the shield of a screen. In October 2016, a journalist, Kurt Eichenwald, received an animated gif Tweet from a Twitter account. While this sounds like a normal, common Tweet to send, for Eichenwald, who is epileptic, the flashing images in the gif would likely cause him to have a seizure. Thankfully, when he tapped the image he just dropped his iPad and suffered no physical harm. Two months later, though, he was not as lucky when another user sent him a similar gif that this time resulted in a seizure.
Eichenwald was vocal about his condition, writing articles in Newsweek and appearing on talk shows speaking about the controversy surrounding comments made about disabled people during the election. These two Tweets were ultimately sent in retaliation for critical comments Eichenwald made about presidential candidate Donald Trump throughout the 2016 election cycle, with the intent to cause him to have a seizure.
These Tweets have raised an interesting question of whether a Tweet can be considered a form of assault. Assault is defined as committing an act that puts the victim in reasonable apprehension of harmful or offensive contact. All the elements of assault are met in this case. The authors of the Tweets knew Eichenwald was epileptic, sent him an image that was reasonably expected to cause a seizure, and he suffered from a seizure. The idea that sending a Tweet could be considered assault sounds far-fetched, but with more assaultive behavior such as this occurring online a similar case similar is likely to be heard in court soon. As it stands now, it is unclear how a court would rule on this matter.
Most people believe at this point that the gif probably would not be considered “speech” and the act of re-posting a gif would not rise to the level of assault. While First Amendment free speech rights are given heavy weight in cases such as these to avoid censorship by online media platforms, it seems a gif itself would need to be uniquely created and sent with the intent of causing harmful or offensive contact. Most commentators seem to believe a court will not find this rises to the level of assault, despite the fact that all the assault elements are met. One lawyer candidly commented that “[o]n a law school exam, he wins . . . IRL, this probably goes nowhere.”
Another interesting twist involves Twitter’s role in the matter. Whether or not the gif is considered speech, Twitter is protected under §230 of the Communications Decency Act as a provider of computer services and cannot be held liable for the actions of their users. But, when Eichenwald filed for pre-suit expedited discovery to compel Twitter to provide the name of the user who sent the Tweet, Twitter surprisingly did not object to the expedited relief and did not supporting the user on free speech grounds. Ultimately, Eichenwald was able to obtain the user’s name without Twitter’s help, but this is a case to watch. If it progresses, an important precedent will arise that will set the stage for the future of Internet speech.