Careers

Experiences

Industries

Offices

Our Firm

Pages

Our People

Updates

Practices

Home - Warner Norcross + Judd LLP

In common speech, the word “assault” is almost never heard apart from the term “battery” (or, occasionally, "a <a href="http://en.wikipedia.org/wiki/A_Salt_with_a_Deadly_Pepa" target="_blank" rel="noreferrer noopener">deadly Pepa</a>"). We use the two words together in a phrase to describe a physical attack on a person. Because augmented reality&nbsp;deals with the non-corporeal, then, it may seem strange to suggest that one could use digital imagery to commit an assault.

contentpilot/introduction

Between the two terms, however, only “battery” actually describes a physical touching. “Assault” is an act intended to, and which directly or indirectly does, cause a person to reasonably apprehend an imminent harmful or offensive contact. In other words, it is the act of causing &nbsp;someone to fear they are about to be hurt. Raising my fist at someone is an assault; actually punching them is a battery.

core/paragraph

Understood in this way, we can begin to see how an illusion projected in&nbsp;augmented reality&nbsp;could startle someone into believing they are about to be harmed. For this theory to work, however, the context would have to be just right. That is because the victim’s fear of imminent contact must be a “reasonable” one. “Reasonable” is a legal term of art indicating an objective, not simply subjective, standard. A silly, impaired, or inattentive person might fear an 8-bit Minecraft character who appears to be jumping out of a screen, but a reasonable person would not.

In order to create a reasonable fear of contact, then, the illusion would have to be both believable and unexpected. The graphical resolution must be sufficiently high that the image could pass, at least for a moment, as for being physically tangible. That is exactly the degree of realism that most creators of AR content strive for, so it is reasonable to expect a fair amount of such content to be available, hardware allowing. It must also be unexpected, because it would not be reasonable to be startled by something you already know is coming.

Both of these requirements could be met by an experience that is sufficiently immersive. And unlike other forms of digital imagery, immersion is exactly the type of experience that AR is intended to create. By definition, a user immersed in an augmented experience subjectively loses touch with the distinction between the digital and physical aspects of his experience. It is in that state when the user could be expected to mistake a digital object coming at him as something capable of inflicting physical harm. But the immersion would need to be complete for a tort claim to have any credibility. It is difficult to foresee a circumstance in which a digital object seen only through a mobile phone or tablet could reasonably be mistaken for something real; more than likely, digital eyewear or a physical installation would be required.

“Intent” is another important element of this claim. Creators of augmented experiences should not take undue comfort in their lack of subjective intent to assault anyone. Tort law distinguishes between the intent to do an act from the intent to cause the resulting harm. Here is where foreseeability comes into play. If someone does something on purpose, and should have known that it would cause a harmful consequence, that person can be held liable for an intentional tort. In this context, therefore, if an experience designer programs a digital creature to jump out in front of a user, and should have known that this would cause a reasonable user to believe, even if just for a moment, that they were in danger of physical harm, the creator could be exposed to liability for the intentional tort of assault.

The types of applications most likely to include such content—for example, Halloween-themed haunted house augmentations or a <a href="http://socialtimes.com/scary-ghosts-come-to-life-in-new-augmented-reality-app-from-goosebottom-books_b177104" target="_blank" rel="noreferrer noopener">ghost storybook</a>—are also those in which the user is most likely to see it coming, or at least to have taken upon themselves the risk of being frightened. But humor being what it is, spooks and scares often crop up in the most unlikely places. Take, for example, the viral “fake ad” <a href="https://www.youtube.com/watch?v=d7J3up1SJMk" target="_blank" rel="noreferrer noopener">videos</a> easily found on YouTube. These follow the common theme of peaceful music playing over a bucolic scene—often a car driving through rolling plains—for several seconds, which is suddenly and jarringly interrupted by a ghost or other scary figure jumping up in the foreground and shrieking. Many of these are so well-designed that it’s difficult not to at least jump, even when you know what’s coming.

Similar humor has already emerged in the augmented medium. For example, in March 2014, Pepsi Max secretly installed video augmentation in the transparent glass sidewall of <a href="http://www.mirror.co.uk/news/weird-news/video-watch-incredible-augmented-reality-3268061" target="_blank" rel="noreferrer noopener">a London bus stop</a>. A popular online video shows falling meteorites, alien attacks, sea monsters rising out of the sewers, and pouncing Bengal tigers—along with the predictably startled pedestrians waiting inside. Some of the scenes, like the laser-blasting robot walking down the street, are obviously fantastical, but others are not so easy to discern.

According to a report in the London Mirror, “With the regular street appearing ‘as normal’ through the glass passersby have no reason to suspect a Kraken emerging from the sewers isn’t real. The brilliant stunt seemed to fool some, with many of the reactions downright hilarious.” Indeed, some pedestrians are shown literally jumping out of their seats and running from the apparent danger.

There's no indication that this particular ad assaulted or otherwise harmed&nbsp;anyone. But&nbsp;ads designed to shock pedestrians have already led to physical injury and legal claims. In 2013, a woman using a staircase in New York City’s Grand Central Station fell and broke her ankle, <a href="http://www.dnainfo.com/new-york/20140625/midtown/woman-scared-by-dexter-ad-sues-mta-for-subway-fall" target="_blank" rel="noreferrer noopener">allegedly</a> because a spooky advertisement on the front-facing portions of the steps startled her. The poster was a closeup of “Dexter” star Michael C. Hall with cellophane covering his face. According to her lawsuit, Ajanaffy Njewadda was distraught as she descended the staircase looking for her husband, from whom she had gotten separated. When she turned around to go back up the stairs, the advertisement frightened her. She lost her balance and fell, receiving a broken ankle and a concussion.

With augmentation of physical installations becoming more common, similarly shocking AR ads are bound to occur. Whether any of them are so immersive and frightening as to cause a reasonable apprehension of immediate and unwanted physical contact remain to be seen. But it seems likely that the providers of at least some such displays may need to defend against such claims before long.

Augmented Legality

Emerging Media and Technologies

Partner

Brian D. Wassom

Information Technology Transactions

Augmented Assault

The Warner Norcross + Judd LLP lawyer responsible for the contents of our advertising and this website is managing partner <a href="/people/mark-j-wassink/" aria-label="Mark Wassink">Mark Wassink</a> who can be reached at <a href="mailto:mwassink@wnj.com" aria-label="email Mark Wassink">mwassink@wnj.com</a> or 616.752.2189. Please read our full <a href="/privacy-policy/" aria-label="see privacy policy">privacy policy</a> available on our website.

Augmented Assault

professionals