Virtual Dignitary Torts

2.1 Battery

Does the offensive virtual “touching” of an avatar satisfy the traditional definitions of battery? Restatement (Second) of Torts defined a battery as the following:

An actor is subject to liability to another for battery if

1. he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

2. a harmful contact with the person of the other directly or indirectly results^[32]

The Restatement (Third) section on Intentional Torts is also largely similar to the Restatement (Second) and states:

1. An actor is subject to liability to another for battery if:

   1. the actor intends to cause a contact with the person of the other;

   2. the actor’s conduct causes such a contact;

   3. the contact (i) is offensive or (ii) causes bodily harm to the other; and

   4. the other does not actually consent to the contact [or to the conduct that causes the contact].^[33]

With these definitions in mind, two principal issues arise in considering the touching of an avatar. First, there is the absence of physical contact, particularly where users are not employing immersive technologies such as haptic gloves or vests. Second, there is the challenge of defining what constitutes an offensive virtual touch within the context of virtual environments. The first issue to be addressed is the absence of physical contact.

While traditional examples of battery were confined to tangible physical contact, the legal application of law developed to be broader than it may initially appear. There are numerous examples illustrating how the recognition of battery has evolved to address newly emerging social contexts and wrongful behaviors. These include 1) recognition of offensive battery, 2) indirect contact satisfying the contact element of the tort, 3) relaxing the tangibility of touching to include substances such as fumes in certain cases, and 4) most notably, the recognition of the doctrine of extended personality.

The first well-known development in the recognition of harm beyond physical harm is the recognition of “offensive battery” alongside the “harmful battery.”^[34] Although offensive battery is an ancient tort itself, with the explicit recognition of the Frist Restatement of Torts, it has continued as a separate cause of action.^[35] Whereas harmful battery involves physical contact resulting in bodily injury, tort law has explicitly expanded the scope of liability to encompass contact that, although not physically harmful, is nonetheless deemed offensive to a reasonable person’s sense of dignity.^[36] Restatement Third states that “[a] contact is offensive if: (a) the contact offends a reasonable sense of personal dignity; or (b) the actor knows that the contact seriously offends the other’s sense of personal dignity, and it is not unduly burdensome for the actor to refrain from causing the contact.”^[37] The Third Restatement, once again underlining the dignitary interest at the heart of battery notes that “there is no requirement that the plaintiff be aware of the offensive contact at the time that it is inflicted, so long as the circumstances demonstrate either that the contact offends a reasonable sense of dignity or that the actor knows it will seriously offend the plaintiff.”^[38]

In Paul v. Holbrook,^[39] for example, the court recognized that an unwanted shoulder message from a coworker could also constitute an offensive battery. Most of recent cases of offensive battery have in fact involved “allegations by female plaintiffs of what we interpreted to be sexual, as opposed to non-sexual, touching by a defendant or defendant.”^[40] This appears to be also true with respect to complaints in the metaverse. In fact, scholarship addressing “virtual rape” predates the emergence of modern metaverse platforms, with calls for criminalization gaining traction as such technologies evolved.^[41] If the protection of personal dignity is a core principle underlying the recognition of offensive battery, then in the modern age, one may argue that avatars constitute an extension of the self that must similarly be treated with dignity.

Second, the law recognizes that indirect contact can satisfy the element of touching necessary for a prima facie case of battery. Courts have long accepted that actions such as firing a gun or throwing a stone constitute sufficient contact,^[42] even though the defendant does not physically touch the plaintiff themselves. Another common example can be removing the chair from behind while knowing someone is about to sit.^[43] While the defendant does not directly touch the body of the person about to fall, she may have a claim for the tort of battery.

Third, courts appear to be interpreting the requirement of tangibility of the touching with flexibility. Although early common law definitions might have excluded contact via substances such as tobacco smoke or noxious gases,^[44] several decisions have held that contact through fumes, radiation, or other intangible matter may satisfy the touching element, provided that the defendant acted with the intent to cause harm or offense.^[45] This is also in line with the Restatement Third’s approach which states “[t]he contact requirement is satisfied in cases where the actor causes the distribution of substances, such as hazardous or toxic chemicals or pollutants, that contact the plaintiff in an offensive or harmful way.”^[46]

Scholars have also called this type of battery that causes physical harm without actual touching a “quasi-battery.”^[47] Stephen Sugarman and Caitlin Boucher note:

[I]f I shined a bright light in your eyes while you were bicycling, intending that this cause you to crash and become physically injured. I would not be liable for intentional battery since I did not make contact with your body, but would be liable for quasi-battery as I nonetheless intended to cause you physical harm.”^[48]

Whether courts characterize such conduct as battery or quasi-battery is immaterial to the present analysis. Rather, the critical point is tort law’s acknowledgment of indirect forms of harm.

Fourth – and most significant to our inquiry into virtual harms – is the doctrine of extended personality as recognized in the tort of battery. This doctrine is exemplified in the 1967 case of Fisher v. Carrousel Motor Hotel, Inc.^[49] The plaintiff in Fisher was an African American “mathematician with the Data Processing Division of the Manned Spacecraft Center, an agency of the National Aeronautics and Space Agency, commonly called NASA, near Houston.”^[50] Invited to attend a conference, Fisher stood in line at the related event’s buffet when an employee abruptly seized the plate from his hands telling him that the restaurant did not serve African Americans.^[51] Fisher “testified that he was not actually touched, and did not testify that he suffered fear or apprehension of physical injury; but he did testify that he was highly embarrassed and hurt by Flynn’s conduct in the presence of his associates.”^[52]

The court affirmed the awards of compensatory and punitive damages for battery, concluding that the employee’s act of forcibly taking the plate constituted an offensive contact with Fisher. The court cited to William Prosser’s Law of Torts, which noted that “[t]he interest in freedom from intentional and unpermitted contacts with the plaintiff’s person is protected by an action for the tort commonly called battery.”^[53] Prosser continues to state, “The plaintiff’s interest in the integrity of his person includes all those things which are in contact or connected with it.”^[54] In upholding the awards, the court also observed that it was not the first court to rule on this way and other examples such as snatching a book from plaintiffs hand have also been upheld as battery for causing the plaintiff to suffer “humiliation and indignity.”^[55]

The court also cited comment p of Restatement (Second) of Torts which in part stated:

Since the essence of the plaintiff’s grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact with his person.^[56]

As illustrated by Fisher and the previously mentioned aspect of the law of battery, when thinking about what must be touched, courts have extended the contours of the body to protect the dignity of the person. As scholars have noted, “personhood is not an ontological fact; it is a legal construct.”^[57] And tort law has increasingly been involved in defining the contours of this personhood.^[58] Today, users in the metaverse not only control every movement of their avatars, but also design them to resemble their physical appearance,^[59] and use their own voices to communicate with others in the virtual environment. Recently, in the context of MMOs or even games such as the Sims, a growing trend has emerged: users livestream their gameplay with their physical faces displayed on one side of the screen and their avatar’s movements shown on the other. When a user’s avatar is inappropriately touching another user’s avatar while also making derogatory comments, as was the case in the reported case of virtual groping mentioned at the outset of the paper, it is upon tort law to grapple with the evolving nature of self-representation and the corresponding demands for dignitary protection. Or thinking about virtual co-working spaces,^[60] if a co-worker’s avatar in the metaverse approaches another co-working and engages in inappropriate virtual touching, should tort law ignore this harm?^[61] This section has argued that given the doctrinal progression of this tort, and the other dignitary torts discussed below, it should not. Whether we decide to call this inappropriate touching a battery,^[62] a quasi-battery, or a virtual battery, the act is creating harm that needs to be remedied and tort laws expansion of its protection from the corporal body to the self-guides us to its feasibility. Next sub-section continues its exploration of tort’s law expansion of protection of the self. With recent studies illustrating the physical impact on the human body associated with the use of an avatar, we further examine the emergence of IIED and NIED.^[63]

2.2 IIED & NIED From No Injury to Recognition of a Cognizable Harm

Although the doctrinal evolution of intentional and negligent infliction of emotional distress followed distinct trajectories, one of the common interests in both torts is the legal recognition of harm to emotional tranquility, whether caused intentionally or negligently.^[64] Courts and commentators long resisted treating mental suffering, or mental anguish, as a compensable injury. While this area of law is still developing and remains in flux, for purposes of our analysis of the expansion of protection beyond the physical body, we can say that it was the courts themselves that first perceived a category of injury for which no existing tort doctrine was an adequate fit.^[65] These cases involved emotional harm that neither stemmed from a harmful or offensive bodily touching for them to be a battery, nor arose from an imminent threat to be considered as an assault.

Among the reasons frequently cited for this reluctancy were: the difficulty in measuring the damages, a thing that is more or less ‘metaphysical,’ too sublet and speculative to be cable of admeasurement, flood of litigation, and even “presenting risks of outright fakery.”^[66] But there was a gap in the law that needed to be filled. Courts were acknowledging that the injury was real – often manifesting as humiliation or an affront to the plaintiff’s dignity.

As for IIED, it was in 1939 that Willam Prosser wrote “[i]t is time to recognize that courts have created a new tort.”^[67] And although the First Restatement initially resisted including liability for pure emotional distress, “[f]ourteen years after the Restatement’s initial publication, an amended version of Section 46 recognized liability for certain intentionally inflicted emotional distress”^[68] It provided:

One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.^[69]

The 1948s Restatement Supplement further explained the reasons why such harm should be recognized in torts. It stated:

The interest in freedom from severe emotional distress is regarded as of sufficient importance to require others to refrain from conduct intended to invade it. Such conduct is tortious. The injury suffered by the one whose interest is invaded is frequently far more serious to him than certain tortious invasions of the interest in bodily integrity and other legally protected interests. In the absence of a privilege, the actor’s conduct has no social utility; indeed it is antisocial. No reason or policy requires such an actor to be protected from the liability which usually attaches to the willful wrongdoer whose efforts are successful.^[70]

The “without a privilege” clause of the original version was later replaced by the “extreme and outrageous conduct” in the Second Restatement.^[71] The “outrageousness,” which has caused the tort to be also called the tort of outrage, while limiting the number of successful claims, provided a doctrinal gatekeeping function that allowed the tort to develop without opening the floodgates to excessive litigation or revisiting earlier doctrinal barriers.

The tort has been exemplified in State Rubbish Collectors Assn. v. Siliznoff.^[72] The case arose when members of a trade association threatened Siliznoff with violence and economic ruin unless he surrendered to their wishes about certain business accounts. Although the defendants never carried out their threat, Siliznoff “testified that because of the fright he suffered during his dispute with the association he became ill and vomited several times and had to remain away from work for a period of several days.”^[73] The association contended that no tort had occurred because neither member had threatened Siliznoff with immediate physical harm, a necessary element under the traditional tort of assault.

But Justice Traynor, writing for California’s Supreme Court, upheld the award for the plaintiff stating that in accordance with the Restatement [First], California recognizes liability in such cases. He noted that given the persuasive arguments “that support the recognition of a right to be free from serious, intentional, and unprivileged invasions of mental and emotional tranquility,”^[74] where “mental suffering constitutes a major element of damages it is anomalous to deny recovery because the defendant’s intentional misconduct fell short of producing some physical injury.”^[75]

In the course of the tort’s doctrinal evolution, Prosser, serving as the Reporter for the Restatement (Second) of Torts, expanded the scope of IIED by incorporating a recklessness standard, allowing liability for conduct undertaken with reckless disregard for the risk of causing severe emotional harm.^[76] Recklessness in this context can be defined “as a failure to heed a very obvious and very significant risk of serious injury.”^[77] The Restatement Third of Torts finally restated the tort in Section 104 as:

An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to another is subject to liability for that emotional harm and, if the emotional harm causes bodily harm, also for the bodily harm.^[78]

Therefore, despite the initial resistance, courts and commentators ultimately acknowledged the harm of emotional distress to protect the broader aspect of the “self.” Could the conduct of an avatar towards another avatar fall within the category of an IIED claim? While outrageous conduct has been a difficult threshold to meet, it is not implausible that such acts could also happen in XR spaces. Scholars have previously argued for the tort of IIED to apply to cyberattacks, arguing that such conducts meet the outrageousness requirement.^[79] We will considered these issues in further detail in the last section.

Continuing with our observation on the expansion of the protection of the body to the protection of the dignity of the self, scholars have observed, “with stand-alone emotional distress as a separate tort, the Restatement Third recognizes two versions of the claim, one for intentional infliction of emotional distress (IIED), the other for negligent infliction of emotional distress (NIED).”^[80]

Although NIED is not typically categorized as a dignitary tort, the tale of the recognition of emotional harm is incomplete without it. The recognition of NIED claims, followed an even more complex and cautious path – one that nevertheless underscores tort law’s gradual but decisive shift away from an exclusive focus on physical harm and toward a more expansive protection of the self.

Initially, claims for negligent emotional distress were generally successful only when the harm was parasitic upon a physical injury. But under this formulation, the tort was no longer one of pure emotional harm. Scholars have observed that only in the latter half of the twentieth century did courts begin to consistently recognize “true” NIED claims, in which mental anguish was treated as a standalone injury.^[81]

In addressing the doctrinal challenge of proving injury and on the path of recognizing pure NIED claims, courts gradually expanded the concept of what constituted a sufficient injury by turning to the so-called “impact rule.”^[82] Borrowing from the law of offensive battery where any form of touching, no matter how minimal, could be sufficient under the circumstances, courts tried to continue to justify providing remedy to the plaintiff’s emotional harm by anchoring liability on the physical touch.

Under the impact rule, “recovery for disturbance of emotional tranquility could be had if the defendant made even the most minimal physical contact with the plaintiff’s person.”^[83] Without the physical impact, no liability existed. The rule was apparently first articulated in an English case called Victorian Railway Comm’rs v. Coultas.^[84] In this case, a gatekeeper directed a coach carrying a pregnant woman to cross train tracks, narrowly avoiding a collision. She miscarried from the shock, but her claim was denied as there was no physical impact.^[85] In 1896, a New York court in Mitchell v. Rochester Ry. Co.^[86] likewise rejected a claim brought by a pregnant woman who miscarried after a team of horses charged toward her, causing fright but no physical contact. By the early twentieth century, this physical impact test had been adopted by most major industrial states.^[87]

But while the impact rule was supposed to help in finding a way to allow for the remedy of had indeed suffered a harm, decision such as Mitchell made the rule appear arbitrary and unsatisfactory.^[88] Courts thus began to look for alternative ways and slowly abandoning the impact rule.^[89] For example, the court in Robb v. Pennsylvania R.R. Co.^[90] dealt with apparent injuries that did not result from any bodily impact. In Robb, the plaintiff’s vehicle became stalled at a railroad grade crossing due to a rut negligently created by the railroad. While trying to move the vehicle, plaintiff saw the train approaching. She jumped out of the vehicle missing the train crashing into her vehicle by a few seconds while standing within a few feet of the collision.^[91] As the court observed:

[t]he plaintiff was not touched by the train; there was no bodily impact; and she suffered no contemporaneous physical injury. Nevertheless, the plaintiff was greatly frightened and emotionally disturbed by the accident as the result of which she sustained shock to her nervous system. The fright and nervous shock resulted in physical injuries including cessation of lactation which interfered with the plaintiff’s ability to nurse and otherwise care for her infant child. Her nervous and general physical condition resulting from the accident also obliged the plaintiff to abandon a horse breeding business and an article which she had been engaged to write for substantial compensation.^[92]

If the court were to adhere to the impact rule, her claim should have been rejected as there was no physical impact. Nevertheless, the court articulates several reasons why the impact rule shall not be followed and instead created the zone of danger rule. According to this rule, plaintiff can recover for emotional injury as long as there is physical harm as a result of the emotional harm, and that the plaintiff is placed in the immediate risk of physical harm.^[93] Under the zone of danger rule, the plaintiff is not solely recovering for emotional harm, but rather, the plaintiff is able to recover damages for the emotional harm because of physical harm or illness that followed the “shock,” or “nervous shock,” that the plaintiff had endured.^[94]

While some courts adopted the zone of danger test, others focused instead on the effects of emotional distress, framing the harm in terms that would support recovery for physical injury rather than for pure emotional harm, thereby satisfying the traditional physicality requirement. According to this view “a plaintiff who could establish that she had suffered a discrete bodily harm or diagnosable illness because of having been exposed to a sudden ‘shock’ should be deemed to be suing not for emotional distress but for the consequent physical harm or illness.”^[95]

While this approach may have appeared to offer a doctrinal solution, plaintiffs were still required to satisfy the element of proximate cause. In many instances, the perceived remoteness of the injury foreclosed liability for physical harm resulting from negligently inflicted emotional distress.^[96] In an effort to reconcile the need of allowing recovery with the traditional requirements of tort law, courts gradually began to abandon the “per se rule of remoteness,” and in essence allowing recovery for carelessly caused physical harms.^[97]

But modern courts appear to be moving further away from requiring any physical injury for allowing recovery where plaintiff can show physical symptoms such as nervous behavior or sleeplessness. As experts note:

The issue of proof of symptomology, in turn, does not arise because of a question as to whether the plaintiff has suffered a physical harm. Rather, the issue is whether the plaintiff has provided sufficient circumstantial evident to permit the factfinder to conclude that she has actually suffered emotional distress.^[98]

In sum, although the traditional rule disclaimed a duty to avoid causing pure emotional harm, the exceptions that once stood at the margins have, over time, begun to assume the character of the rule itself. This evolution is reflected in the Restatement (Third) of Torts, which in Section 47 under the heading “Negligent Conduct Directly Inflicting Emotional Harm on Another,” recognizes specific categories where a duty to avoid emotional harm is affirmatively imposed. It provides, in part:

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct:

1. places the other in danger of immediate bodily harm and the emotional harm results from the danger,^[99]

This essay will not discuss the other areas of the NIED law: under takings, special relationships,^[100] and bystander liability.^[101] It is suffice to say that both scenarios work in favor of the argument advanced in this paper, which is that tort law is slowly but steadily moving towards the protection of the self beyond bodily injuries, with all its difficulty and resistance from both legal scholars and some of the courts. These doctrinal shifts and try and errors reflect, in part, a respond to scientific evidence of the impact of emotional harm. This is evident by even the Third Restatement Reports note on PTS. The Reporters note:

Since it gained recognition in the DSM-II, there has been considerable research into PTSD. Researchers have measured the incidence of PTSD following specific traumatic (trauma is not limited to sudden events, it includes, for example, repeated sexual harassment and child sexual abuse) events, the role of individual characteristics in determining whether an exposed individual suffers PTSD, the role of non-traumatic stressors, such as the stress of daily life, in the development of PTSD, and the relationship of PTSD with other mental-health diseases. (citation omitted).^[102]

Similarly, while the law is slow in catching up with the modern advancements, academia has been busy detailing the scientific evidence of emotional and physical entanglements of people and their experiences with avatars and the metaverse. Studies on avatars and virtual environment are older than the newly emerged metaverse worlds. For example, since the late 1990s, “studies have investigated the physiological reactions to stressful virtual environments, generally as a method for treating phobias, post-traumatic stress syndrome, and similar conditions using biofeedback as an objective tool.”^[103] Such biological studies have only increased.^[104]

Whether the person is wearing a haptic suit or gloves that can resemble the physical impact or a “nervous shock” that some courts have required, or wearing devices that can record racing heartbeats^[105] and other biometric features, the evidence of emotional and in some cases physical harm on people who do experience harassments by other avatars clearly exists in these immersive worlds and experiences. Tort law should be prepared to face these new realties. Many of these harms have been sexual harassment cases report by women.^[106] As previously mentioned, scholars have illustrated tort law’s traditional gender bias,^[107] especially as it relates to resistance in recognizing emotional harm.^[108] A similar trend can be observed as it relates to reports of “virtual rape” and sexual harassments. An increasing body of scholarship has addressed the phenomenon of “virtual rape,” underscoring both the seriousness of the harm and the law’s persistent reluctance to confront it.^[109] Such harassments experienced through avatar interactions are real to people the same way PTS is real.

Now that we have illustrated how the concept of the self has expanded beyond the boundaries of the physical body in torts, it is time for the law to reckon with this emerging reality of the metaverse. As Homes once said, “The life of the law has not been logic; it has been experience.”^[110] The evolving recognition of emotional harms within tort law as discussed reflects its capacity to respond to new forms of injury without forsaking its foundational normative commitments. As one last example, this essay briefly addresses the tort of misappropriation of likeness, and then turns to the discussion of defense.

2.3 Appropriation of Likeness

William Prosser’s classification of privacy law into four distinct torts continues to define the field today.^[111] Among these four torts, the tort of appropriation of likeness (sometimes referred to as misappropriation of likeness) is the most pertinent to the present discussion.^[112] Restatement Second of Torts defines this tort as the following:

One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.^[113]

The issue relevant to our question of torts in the metaverse and the protection of the self, is how the concept of likeness has evolved. It was in Pavesich v. New Eng. Life Ins. Co.,^[114] that the Supreme Court of Georgia for the first time in the U.S. recognized such privacy right in common law.

But the protection of what was initially unwanted distribution of the physical image, expanded to include other aspects of unauthorized use of one’s self, such as voice.^[115] With the expansion of the scope of the tort, liability began to attach to the unauthorized use of one’s “persona.”^[116] This expansion encompassed even the implicit reference to an individual’s identity. In White v. Samsung Electronics America, Inc.,^[117] the court ruled in favor of Vanna White after Samsung depicted a robot dressed in a blonde wig and evening gown, mimicking White’s signature gestures from Wheel of Fortune. In holding for White, the court emphasized: “the specific means of appropriation are relevant only for determining whether the defendant has in fact appropriated the plaintiff’s identity.”^[118] The court noted that case law, such as Midler,^[119] only teaches us, “the impossibility of treating the right of publicity as guarding only against a laundry list of specific means of appropriating identity.”^[120]

Even this privacy dignitary tort could not hold to specific means for the protection of one’s identity. As developed in the author’s prior work, Data as Likeness,^[121] this protection should now be conceptualized as the “digital persona,” encompassing the legal protection of certain personal data. While this essay does not undertake a full discussion of the concept, it refers the reader to Data as Likeness for a more detailed treatment.

But as this brief overview illustrates, tort law has progressively expanded its protection of the self beyond physical body, and this can include the self-representation in the form of avatars. In fact, as previously noted, Apple calls its version of avatar for the XR space, Persona.^[122] Through the technology incorporate in its VR headsets, by a mere scan of the face, personal Persona’s are captured and created. As Apple defines it: “Your Persona is a dynamic, natural representation of your face and hand movements that can be used while you’re wearing Apple Vision Pro.”^[123] These Personas are highly realistic digital avatars that mirror the user’s human features and expressions, rather than adopting a cartoon-like form that most other VR tech currently use.^[124] Apple says that personal Personas are encrypted on the user’s device and Optic ID or passcode for access.^[125]

Optic ID represents an even more intimate digital identifier than those commonly used, as it relies on iris recognition technology captured by Apple’s VR headset camera. According to Apple:

When you set up Optic ID, spatiotemporally modulated eye-safe near-infrared light illuminates the eye, so that the Apple Vision Pro eye cameras can capture images of your iris. This iris image data is sent to and processed on the Secure Enclave and a portion of the Apple M2 chip’s neural engine that’s protected within the Secure Enclave, where it is transformed into a mathematical representation for enrollment.^[126]

Given the level of personalization, it is difficult to regard such visual representations as anything other than the user, despite their non-physical format. Tort law must grapple with these emerging realities, the virtual self, and virtual wrongs, which will only become more sophisticated with time. The next section examines the issue of defenses.