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.
Related Posts on Virtually Blind
- Reading Room: New Paper Argues for Application of Privacy Tort to Virtual World Activity: "This edition of the site's Reading Room (the first of two this week)..." (1 comments)
- Real Josh Wolf Attends Harvard Law School’s ‘Josh Wolf Mock Trial’ in Second Life: "Harvard Law School recently wrapped up a Second Life-based mock trial..." (1 comments)
- Virtual Law Quicklinks: Virtual Auction Ban, Knock-Off Hairstyles, and the “Next MySpace”: "Virtually Blind periodically runs "quicklinks" -- items that are not..." (0 comments)
5 Responses to “Suicide of Thirteen-Year-Old MySpace User Suggests New Application for Neglected Tort Doctrine”
Leave a Reply
Notes on Comments: Your first comment must be manually approved, but after it is you'll be able to post freely with the same name and email. You can use some HTML (<a> <b> <i> <blockquote> etc.) but know that VB's spam blocker holds posts with five or more <a> links. VB supports gravatars. Got a gravatar? Use the associated email and it'll show with your comment. Need one? Set it up for free here.