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United States Law
The Restatement (Second) of Torts § 217 defines trespass to chattels as “intentionally… dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another.” Harm to personal property or diminution of its quality, condition or value as a result of a defendant’s use can also result in liability under § 218(b) of the Restatement.
Certain specific circumstances may lend themselves to liability for the action. The Restatement (Second) of Torts § 218 states further that:
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,
(a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.
The trespass to chattels cause of action, frequently asserted in recent years against Internet advertisers and email spammers, is often included in complaints against spyware companies. These electronic messaging cases, and their progeny, which have cropped up over the last decade, will typically turn on the situations described in (b) or (d), and, as detailed below, the question of harm caused is a big issue.
In sum, the basic elements of a claim of trespass to chattels are: 1) the lack of the plaintiff’s consent to the trespass, 2) interference or intermeddling with possessory interest, and 3) the intentionality of the defendant’s actions. Actual damage is not necessarily a required element of a trespass to chattels claim. See, e.g., Hawkins v. Hawkins, 101 N.C. App. 529, 532, 400 S.E.2d 472, 475 (1999). See also, Marjorie A. Shields, Applicability of Common-Law Trespass Actions to Electronic Communications, 107 A.L.R.5th 549.
Discussion of the features of the claim
a) Lack of consent
A vendor can attempt to dispute a trespass claim on the grounds that the user consented to the terms of the contract. Even if consent was given for certain access, a user may still have a valid trespass to chattels complaint if the vendor has exceeded the contractual terms, if the contract is found to misrepresent the actual functioning of the product, or if the consent has been withdrawn. A vendor can be held liable for “any use exceeding the consent” given. (Restatement (Second) of Torts § 256). See, e.g., CompuServe Inc. v. Cyber Productions, Inc., discussed below.
b) Actual harm
The precise criteria for ascertaining actual harm varies among states. In California, for instance, an electronic message can be deemed a trespass where the message interferes with the target computer’s operation, as long as a plaintiff can demonstrate either actual hardware damage or actual impaired functioning (See Intel Corp. v. Hamidi, 30 Cal.4th 1342 (2003)). But the general concept of requiring impaired computer functioning has been adopted consistently and in showing impaired computer functioning, courts have usually emphasized system unavailability.
c) Intentionality
In clarifying the meaning of intentionality in the context of a trespass to chattels claim, § 217 of the Restatement (Second) of Torts states that “intention is present when an act is done for the purpose of using or otherwise intermeddling with a chattel or with knowledge that such an intermeddling will, to a substantial certainty, result from the act,” and that, furthermore, “[i]t is not necessary that the actor should know or have reason to know that such intermeddling is a violation of the possessory rights of another.”
Damages from a trespass claim are limited to the actual harm sustained by the plaintiff (which can include economic loss consequent on the trespass - e.g. loss of profit on a damaged chattel). In cases of dispossession, the plaintiff is always entitled to damages if they can prove the dispossession occurred, even if no quantifiable harm can be proven.
A related tort is conversion, which involves an exercise of control over another's chattel justifying restitution of the chattel's full value. Some actions constitute trespass and conversion; in these cases, a plaintiff must choose which claim to make based on what amount of damages they seek to recover.
Trespass to Chattels in the Electronic Age
This intentional tort has been used more recently as a means for Plaintiffs to combat the proliferation of spam, otherwise referred to as unsolicited bulk emails, unsolicited commercial emails, or junk emails.1 Applying this common law action in cyberspace, bearing in mind that the legal theory is one designed to protect personal property rights, requires the party simply to establish an unauthorized receipt (e.g., on a computer or server) of bulk emails over the Internet and a quantifiable harm, such as impaired functioning of the computer or server. Of course, this version of trespass has been extended even further in the ever-expanding world of the Internet.
Court have grown more receptive to this theory, as CompuServe Inc. v. Cyber Promotions, Inc. demonstrates.2 In this 1997 case, one of the first of its kind, a Federal Court was confronted with a question of whether the sending of a high volume of unsolicited advertisement-type emails to CompuServe subscribers could be considered a valid trespass to chattels. Customers of CompuServe received multitudes of continued, unwanted advertisement emails from Defendant Cyber Promotions. Even though CompuServe initiated programs set to interrupt and block the incoming emails from Defendant, Defendant also modified its equipment and falsified other information to get around the obstacles put in place by CompuServe. Due to the high volume of emails, CompuServe claimed damage to its servers, as well as moneys lost dealing with customer complaints and satisfaction. CompuServe also extended its damages claim to its subscribers who pay for portions of time used on the internet, and, when each have to spend that time deleting unwanted email, money was lost as a result. Further, CompuServe saw no compensation from Defendant for using its service to reach CompuServe's customers. Based on these facts, and unavailing arguments by Cyber Promotions (including a First Amendment defense), the Court found in favor of CompuServe and ordered the issuance of an injunction. In doing so, the Court held that when a party
engage[s] in a course of conduct of transmitting a substantial volume of electronic data in the form of unsolicited e-mail to plaintiff's proprietary computer equipment, where defendants continued...after repeated demands to cease...and where defendants deliberately evaded plaintiff's affirmative efforts to protect its computer equipment from such use, plaintiff has a viable claim for trespass
to chattels.
In America Online, Inc. v. LCGM, Inc., a company engaging in pornographic website advertising sent a deluge of spam to AOL's customers, and, in so doing, also forged the AOL domain name in efforts to trick customers into trusting and opening the emails. Ultimately, the Court found the defendant liable for fraud (under a state and federal statute), dilution of trademark, and for trespass to chattels, following the rationale from CompuServe.
However, some Court have seen fit to limit trespass to chattels claims, in that a complaining party may be unable to recover for lack of real harm having only received a small number of spam emails. See, e.g., Intel Corp v. Hamidi.
In 2003, Congress enacted the Controlling the Assault of Non-solicited Pornography and Marketing Act, or CAN-SPAM. The Act is intended to regulate bulk unsolicited emails, especially those that are misrepresentative -- but its purpose is more to promote the continuation of such emails, so long as they adhere to particular standards.
The enactment of CAN-SPAM has in some ways curtailed litigation efforts under this legal theory too. CAN-SPAM pre-empts a state law (not unlike in AOL v. LCGM, decided before enactment) that improperly limits the sending of commercially-oriented emails (that do not on their face indicate deception, etc.) See, e.g., Omega World Travel, Inc. v. Mummagraphics Inc, in which the Court dismissed the trespass action due to federal pre-emption under CAN-SPAM as well as for only nominal damages as a result of any trespass by the defendant.
Screen-scraping is also a burgeoning issue and has obvious trespass to chattels implications (not to mention copyright and trademark infringement). Basically, screen-scaping occurs when a company or person takes information from another website and "harvests" it on their own, such as when travel sites offer a host of options gleaned from various airlines. Of course, litigation has resulted and has spurred some companies to cite the conduct in their online terms & conditions. See, e.g. Wawa's website terms and conditions.[1]
The introduction of trespass to chattels into the digital world is not without its detractors. There are serious First Amendment free speech issues at stake, as well as the potential stifling of competitive markets. See EFF Analysis of Trespass to Chattels Theory.[2] where the author urges that internet trespass litigation is a bane on various individual expression rights, etc.
References
- Restatement (Second) of Torts, §§ 217, 218, 221, 252, 256.
- Hawkins v. Hawkins, 101 N.C. App. 529, 532, 400 S.E.2d 472, 475 (1999).
- CompuServe Inc. v. Cyber Productions, Inc., 962 F.Supp. 1015 (S.D.Ohio 1997).
- America Online, Inc. v. LCGM, Inc., 46 F.Supp.2d 444 (E.D.Va.1998).
- Intel v. Hamidi, 30 Cal.4th 1342 (2003).
- Marjorie A. Shields, Applicability of Common-Law Trespass Actions to Electronic Communications, 107 A.L.R.5th 549.
See also
- Conversion (tort)
- Detinue
- Trover
- Screen scraping
- CAN-SPAM Act of 2003
- Digital Millenium Copyright Act.
External Links
- EFF Analysis of Trespass to Chattels Theory. [3]
- Internet Library of Law and Court Decisions: Trespass to Chattels.[4]
