Suicide of Thirteen-Year-Old MySpace User Suggests New Application for Neglected Tort Doctrine
November 21st, 2007 by Benjamin Duranske
A recent tragic death that was allegedly sparked by a series of MySpace messages from a phony account suggests the possible application of a neglected tort called “Intentional Infliction of Emotional Distress” to virtual worlds. While MySpace isn’t really a virtual world, the connections there (between people using pseudoanonymous identities) mirror virtual world activity, and the legal questions this issues raises are no different.
According to a report last in the St. Charles Journal, a thirteen-year-old Missouri girl named Megan Meier recently took her own life after a MySpace “friend” — a “really hot” guitar-playing sixteen-year-old named Josh Evans she regularly chatted with — allegedly told her that everyone in her hometown hated her, and that the world would be better off without her.
If that was all there was to the story, it would be tragic, but sadly, not overwhelmingly uncommon. It actually gets much worse.
According to Megan’s parents, Josh Evans did not exist. They believe that the “Josh Evans” account was the fabrication of the parents of a former friend of Megan’s with whom Megan had a falling out. According to the article, several of Megan’s peers had the password to the account, including one girl Megan’s age who had sent a message from the account the night before Megan died. This girl, through her mother, told the Meiers that their adult neighbors had created the account and encouraged her and other children to send Megan increasingly hostile messages.
It’s important to note that none of this has been substantiated, and that that St. Charles Journal report really leaves more questions unanswered than it answers. A Wired blogger reports that a prosecutor is reviewing the case.
From the standpoint of virtual law, the allegations here highlight a potential application for the doctrine of “Intentional Infliction of Emotional Distress” (IIED). The tort, which has gained limited acceptance since it first appeared in California in the middle of the last century, may find renewed life in lawsuits arising from similar conduct in virtual worlds.
The problem, traditionally, with bringing a claim based on IIED that the bar for judging the behavior that gives rise to the claim is pretty high. People just aren’t that awful to each other face to face, for the most part. Unfortunately, the pseudoanonymity offered in virtual worlds and on sites like MySpace encourages behavior that regularly meets the test.
The elements of the tort, briefly, are that the conduct must be heinous and “outrageous” by societal standards, that the behavior must actually causes emotional distress, and that the emotional distress must be severe. State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330. It is the first element (outrageousness) that has proven difficult for plaintiffs to meet.
Factors that have weighed in favor of a finding of outrageous include (1) a pattern of conduct (as opposed to a single incident), (2) the defendant’s exploitation of a known vulnerability in the plaintiff, (3) an unequal power balance between the defendant and plaintiff; (4) use of racial epithets by the defendant; and (5) a fiduciary relationship. Taylor v. Metzger, 706 A.2d 685 (N.J. 1998); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999).
MySpace is pretty personal, but interaction in virtual worlds, where you use an avatar that becomes a literal projection of your self in to the virtual space, is far more personal. Users, the editor of VB included, regularly refer to actions of the avatars using the first person (e.g. “I flew up to the top of a cool building”). Many users identify intensely with their avatars. Add to that the fact that conduct in virtual worlds is far more often of a nature that is “heinous and outrageous” by societal standards than in real life, and you have a recipe for the rehabilitation of this long-neglected tort.
Criminal prosecutions are an excellent deterrent, but prosecutors are overworked and sometimes reluctant to get involved in online disputes. Civil cases have a lower burden of proof, and can also serve as a check on despicable behavior like that alleged here.
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5 Responses to “Suicide of Thirteen-Year-Old MySpace User Suggests New Application for Neglected Tort Doctrine”
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As a side note, I have to admit that I am completely astounded by the alleged actions of these parents. If these facts are substantiated, I fear the possibility that these sort of ridiculously vengeful actions are not isolated to this case. What adult feels the need to taunt a 13 year old?
More on point, though, I would like to challenge your second to last paragraph, regarding the difference in personal connections we feel to our MySpace pages versus our avatars in virtual worlds. I’m not entirely convinced by your statement that, “I just flew to the top of a cool building” is entirely demonstrative of the fact that we are more personally affected by actions taken against our avatars versus those messaged to us via our personal profiles in social networking sites.
MySpace pages represent what would be a modern, digitized version of a phone-book. They contain information about our lives that is (mostly) factual, including personal photographs, likes and dislikes, et al. Correspondence received through social networking sites is typically forwarded directly to our personal email addresses, or at least checked as often. Given those facts, I find it difficult to differentiate any statements made against me through a social networking site from anything that would be said against me via email, over the phone, or in person. It is _me_ that they are attacking, not an avatar.
In Second Life and other virtual worlds, we are less personal. Linden Labs advocates that SL is, indeed, our ‘Second Life’, and many users are reticent to share details of their actual life with users that they meet. In fact, it tends to be only those who are doing business or pursuing other more real-life-related endeavors (e.g., the law) within Second Life who are willing to release their real information. Everybody else (a relative super-majority of the users) are not being completely honest about themselves. ‘First Life’ tabs in profiles are often left empty. As such, they are detached from their character in a way that is perhaps best captured in the third-person way that we view our ‘avatar’ walking around the world. In that sense, saying ‘I just flew to that building’ is simply an in-character (see, e.g., roleplaying) way of maintaining the suspension of disbelief required in most virtual worlds. Even in worlds like Second Life where ‘roleplaying’ is not explicitly required or present (c.f., e.g., World of Warcraft, Ultima Online), there is still an element of it in every-virtual-day activities.
That being said, I believe that there is a disconnect between avatars in virtual worlds and the puppeteer pulling the strings. Since the avatar does not always map 1:1 with the person at the keyboard, I think that there may be less internalization than a direct attack on the person him/herself.
I’m certainly not arguing that there are no emotional connections: certainly, many SL users maintain relationships within the game, and thus open themselves up to emotional involvement. And certainly, the possibility of IIED claims within such worlds has merit and ought to be explored. But, I feel that the claim that somebody is more likely to be hurt by their avatar receiving a few personal blows than their ‘MySpace’ profile attracting it is inaccurately blurring the explicit personal connection between a person and their online personal profile.
Really interesting points. Being one of those people who ties a lot of real life data to my avatar, and yet not being overwhelming “connected” to him (I’d trade up to one with my real last name in a heartbeat) I’m probably a bad example. The people I’m thinking of are exactly those you mentioned. People who have fallen in love with somebody they met in Second Life, people who are logged in as their avatar 40, 50, 60 hours a week, people who get truly offended by other peoples’ in world activity, that kind of thing. You may be right that people are more invested their MySpace sites, but reading something like Dibbell’s “Rape in Cyberspace” it becomes pretty clear that people can be incredibly invested in their digital alter egos, even in text based worlds. It seems to me that 3D worlds make that even more likely.
A follow up, from CNN [http://rss.cnn.com/~r/rss/cnn_topstories/~3/194577126/index.html]:
” A Missouri prosecutor said Monday no charges would be sought in the case of a teen who hanged herself last year after chatting on MySpace, although he said adults should have prevented the tragedy.”
And, in a move which surely cannot have been sanctioned by her lawyer, the mom in question writes her own account of the whole saga:
http://meganhaditcoming.blogspot.com/2007/12/im-lori-drew.html
(Provided that it’s really her, but it’s certainly self-justifying enough to satisfy my spectator’s position.)
please i want my old my space