Page 102 - Cyber Warnings

Eichenwald became conscious, it would appear possible that his wife could have thought her
husband was going to die, as she watched him fall to the floor. Upon Mr. Eichenwald regaining
consciousness, it could be argued that it was likely that Mr. Eichenwald was placed in
reasonable fear of death. Indeed, it’s also likely that he was placed in fear of serious bodily
injury, because after viewing the GIF, he experienced a seizure that lasted for approximately
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eight minutes. His wife explained to law enforcement that he experienced a complete loss of
his bodily functions and mental faculties, as he had no recollection of the incident other than
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waking up on the bathroom floor with his wife holding him.
While part of his job with Newsweek is to actively use Twitter to share and communicate
relevant information, Mr. Eichenwald told Good Morning America that [he] has continued to
experience impairment to [his] bodily functions and mental faculties, as [he] is careful on the
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length of time [he] [drives] and how often [he] spends on Twitter. Mr. Eichenwald’s neurologist
informed sources that because of this seizure, Mr. Eichenwald could experience other seizures
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in the near future.
Lastly, the Statute indicates that crimes falling under this section, could subject an individual like
Mr. Rivello to imprisonment, ranging from 10-20 years. While briefly set out, the Statute seems
adequate enough in addressing a scenario such as this.
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C. A States’ Point of View: Assault With a Deadly Tweet?”

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The Texas Penal Code and Ohio Revised Code assault statutes are almost harmonious,
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therefore, the following legal analysis will be pursuant to the Ohio Revised Code (“Code”).
1. Did Mr. Rivello “Assault” Mr. Eichenwald When He Sent Him a GIF
Through Twitter?
Under the Restatement (Second) of Torts, “an actor is subject to liability to another for
assault if:

(a) He acts intending to cause a harmful or offensive contact with the
person of the other…or an imminent apprehension of such a contact,
and

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(b) The other is thereby put in such imminent apprehension”

 Restatement (Second) of Torts, emphasis
added
Applying the Restatement to the case at hand, Mr. Rivello intended to send a GIF when he sent
a tweet to Mr. Eichenwald, a known epileptic, containing a strobing message flashing, “YOU
DESERVE A SEIZURE FOR YOUR POSTS.”

28 Hoff Aff. ¶ 14.
29 Id.; see also http://abcnews.go.com/GMA/video/newsweek-reporter-twitter-induced-seizure-claim-44297849
30 http://abcnews.go.com/GMA/video/newsweek-reporter-twitter-induced-seizure-claim-44297849
31 Id. at ¶ 18.
32 This phrase was coined by Attorney and Author, Keith Lee on his blog, The Associate’s Mind
http://associatesmind.com/2016/12/16/can-you-sue-someone-for-a-tweet-that-induces-epilepsy/ ; see also Parts II-VI
33 Tex. Penal Code §22.02
34 Ohio Rev. Code §2903.11(A)(1)/(2)
35 Restatement (Second) of Torts §21 (1965).
102 Cyber Warnings E-Magazine – May 2017 Edition
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