TORTIOUS LIABILITY FOR CYBER HARASSMENT AND VIRTUAL HARM: REIMAGINING THE LAW OF TORTS IN THE DIGITAL AGE

Abstract

The transformation of social interaction from the physical world to the digital environment has generated forms of injury that were largely unknown when the modern law of torts developed. Cyber harassment, cyberstalking, doxxing, cyberbullying, online defamation, impersonation, non-consensual dissemination of intimate images, deepfake abuse, identity manipulation and persistent digital surveillance can cause profound injury without any physical contact between the wrongdoer and the victim. The consequences may include loss of reputation, invasion of privacy, psychological suffering, disruption of family and professional relationships, physical-security risks and economic loss.

Indian law presently addresses different dimensions of these wrongs through a fragmented combination of tort principles, constitutional rights, the Information Technology Act, 2000, intermediary regulation, criminal law, consumer protection and equitable remedies. The absence of a comprehensive statutory tort of cyber harassment, however, does not necessarily mean the absence of civil liability. Traditional principles of negligence, defamation, privacy, nuisance, intentional wrongdoing and vicarious liability possess sufficient flexibility to respond to many forms of virtual harm.

This article examines whether and how the law of torts can accommodate cyber harassment and virtual harm. It develops the concept of the “digital personality” as an extension of the legally protected personality of the individual and argues that privacy, reputation, dignity, informational autonomy and digital identity should receive meaningful tortious protection. It further examines the difficult question of pure economic loss through a comparative study of Murphy v. Brentwood District Council and Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. The article also considers emerging problems associated with artificial intelligence-generated deepfakes, intermediary responsibility, platform design, anonymous perpetrators and the persistence of online material.

The article proposes a technology-neutral framework based upon duty, foreseeability, proximity, control, substantial interference, causation and reasonable preventive responsibility. It argues that tort law should neither impose universal liability for online speech nor require a victim to wait until virtual harm produces physical injury. A carefully defined doctrine of digital tortious liability can protect victims while preserving freedom of speech and legitimate online expression. The article ultimately argues that the future of tort law lies in recognising that the “person” protected by tort law now possesses both a physical and a digital existence.