Cyberbullying has become an epidemic. And some people are taking online harassment to new levels. Instead of just threatening rape or telling someone to kill themselves, which seems part and parcel of the online experience these days, one Twitter user sent a strobing GIF to another user he knew to be epileptic, along with the message, “You deserve a seizure.”
The GIF had its intended affect. The victim did have a seizure, and the sender was arrested on federal cyberstalking charges. And this week a judge allowed a battery lawsuit based on the incident to proceed in federal court.
Assault With a Deadly Weapon
The victim in this case, Kurt Eichenwald was a Vanity Fair contributing editor and Newsweek senior writer at the time that John Rivello sent the seizure-inducing tweet. Rivello had also sent other Twitter users direct messages regarding his intent in sending the flashing GIF file, saying, “I hope this sends him into a seizure,” “Spammed this at [victim] let’s see if he dies,” and, “I know he has epilepsy.” Rivello had also allegedly researched epilepsy seizure triggers online before sending his tweet.
While the federal charges against Rivello were dismissed, he still faces one count of aggravated assault with a deadly weapon in Dallas County, a charge that includes a hate-crime enhancement.
Eichenwald also sued Rivello in federal court, claiming battery and intentional infliction of bodily harm. Although a judge dismissed the latter, claim, the court allowed the lawsuit to proceed, asserting that the physical contact necessary to a battery claim can be “of an amorphous nature; it is not always accomplished by means of a solid, graspable object.”
“The strobe GIF was a physical tool, one that would have the same impact on any person with plaintiff’s condition,” according to U.S. District Judge James Bredar. “What mattered was the physical nature of the light emitted from the GIF.” Bredar said that past cases had found second-hand smoke, an electric shock, and a loud noise can all constitute battery, and hypothesized that Texas courts would allow battery claims if someone used a laser to cause blindness or a sonic weapon to cause hearing loss.
So yes, you can be arrested and sued for sending a GIF, especially if you pronounce it incorrectly.