Real-World Consequences for Online Actions: The Case for Expanding Employee Harassment Protection via Employers’ Rights of Action
Real-World Consequences for Online Actions: The Case
for Expanding Employee Harassment Protection via
Employers’ Rights of Action
Alexander Barnes*
ABSTRACT
This Note argues for expanding employers’ access to legal remedies
that allow them to recoup the costs of protecting their employees from
swatting, doxing, and other online harassment arising from their employees’ professional activity. Part I provides a brief description and history of
the online harassment problem and its potentially deadly dangers. Part II
describes employers’ legal responsibility to take action to protect their employees from harassment aimed at their employees within the scope of
their employment. Part III explores common legal remedies that are currently available to employers, using the state of Washington as an example. Part III also evaluates the various costs and shortcomings of those
remedies.
Finally, Part IV analyzes a recent development in this area of tort law
in the state of Washington that expands Washington employers’ right to
recoup the costs of protecting their employees from online harassment.
Part IV also addresses how state legislatures can enable courts to fashion
similar equitable remedies, as well as how legislatures can independently
expand employers’ ability to protect their employees and help employees
recover their damages from harassment in rapidly evolving online spaces.
*Alexander Barnes, Seattle University School of Law, Class of 2025.
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[Vol. 48:165
CONTENTS
INTRODUCTION ......................................................................................166
I. EMPLOYERS’ RESPONSIBILITY TO PROTECT EMPLOYEES
FROM THIRD PARTIES ............................................................................169
II. THE LEGAL REMEDIES AVAILABLE TO EMPLOYERS IN
WASHINGTON PRIOR TO BUNGIE, INC. V. COMER
AND THEIR SHORTCOMINGS ..................................................................170
A. Intentional Interference with Contractual Relations ....................170
B. Nuisance .......................................................................................171
C. The Washington Consumer Protection Act ...................................172
D. Invasion of Privacy by Intrusion on Seclusion .............................174
E. Negligence ....................................................................................174
III. EVOLUTIONS IN THE LAW ................................................................175
A. Bungie, Inc. v. Comer: A Case Study............................................175
B. Proliferating Recognition of a New Common Law Cyberharassment Tort .................................................................................180
CONCLUSION..........................................................................................183
INTRODUCTION
When Andrew Finch stepped out of his front door in December 2017,
he had no idea why police were at his residence.1 A few seconds later,
Finch was fatally shot by an officer who believed he was responding to a
murder-hostage situation.2 Neither Finch nor the officer knew they had
become part of an online dispute over a video game.3 After an argument
during a multiplayer session of an online video game, one of the players
asked a friend to “swat” his opponent by reporting a fake murder-hostage
1. Chance Swaim, Wichita Settles Lawsuit in Andrew Finch Killing, the Nation’s First Fatal
Swatting, YAHOO SPORTS (Mar. 14, 2023), https://sports.yahoo.com/wichita-settles-lawsuit-andrewfinch-172440594.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAMhxgKkWuQf4eGF96uoUaBN_lp2fwUj0HhhfKbk-fd6ZUhFD-ALxZe7FwtNeReLRRPGXePvj21NTxu4anv9CLGv8ekHymgqurmApOd5gfr5qnBXO1yKuu8WsGEOGctekE2Bu_bxdu75y3WZI3XhflXCLk84SudypCvxxZqc4wUG [https://perma.cc/D3Q7-7QWH].
2. Id.
3. Id.
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Real-World Consequences for Online Actions
167
situation and directing the police to his opponent’s residence.4 However,
he had the wrong address.5 Finch was the first known fatality from swatting in the nation.6
The American Bar Association defines swatting as “[a] false emergency report of a bomb threat, murder or hostage situation at a person’s
home address that results in SWAT police unit military-type responses.”7
The practice represents just one way in which online conflicts can spill
over into the real world, sometimes with deadly consequences.8 Another
powerful tool used in online harassment is the practice of “doxing,” which
is “[t]he search for and publishing on the internet of private or identifying
information about a particular individual with malicious intent.”9 Aside
from the potential for physical harm, threats and harassment can result in
profound mental and emotional distress.10
While the impetus for swatting, doxing, and online harassment can
be a purely personal dispute, as in the case of Andrew Finch, such tactics
can and are deployed to target individuals because of their professional
activity.11 For example, in 2022, the community manager for the game
Destiny 2 reposted tweets featuring a Black fan and content creator with
whom the game’s developer, Bungie, had partnered.12 Shortly thereafter,
an anonymous on X, formerly known as Twitter, posted threats to kill
Bungie employees.13 Several employees also received text messages and
voicemails to their personal phone numbers that contained racial slurs.14
The community manager and their spouse were particular targets, and the
4. Peter Szekely, Man Who Admitted Role in Kansas ‘Swatting’ Death Gets 20 Years, REUTERS
(Mar. 29, 2019), https://www.reuters.com/article/us-kansas-swatting/man-who-admitted-role-in-kansas-swatting-death-gets-20-years-idUSKCN1RA29E [https://perma.cc/EY9V-TLM6].
5. Id.
6. Swaim, supra note 1.
7. Why Addressing Online Harassment and Discrimination Is so Difficult, YOURABA, May
2017,
https://www.americanbar.org/news/abanews/publications/youraba/2017/may-2017/why-addressing-online-harassment/.
8. See, e.g., Swaim, supra note 1.
9. YOURABA, supra note 7.
10. See, e.g., Default Judgment and Order at 5–6, Bungie, Inc. v. Comer, No. 22-2-10761-8 SEA
(Wash. Super. Ct., July 11, 2023) [hereinafter Bungie].
11. Viktorya Vilk, What to Do When Your Employee Is Harassed, HARV. BUS. REV. (July 31,
2020), https://hbr.org/2020/07/what-to-do-when-your-employee-is-harassed-online [https://perma.cc/
Z33Y-EMTL] (describing the problem of widespread online harassment and its use against journalists,
policymakers, and academics). See, e.g., Colin Campbell, Vitriol and Harassment Hit Developers of
New Baldur’s Gate Expansion, POLYGON (Apr. 5, 2016), https://www.polygon.com
/2016/4/5/11371428/baldurs-gate-dragonspear-trans-statement [https://perma.cc/7XGL-P8XA].
12. Paul Tassi, Bungie Harassment Over ‘Destiny 2’ Has Been Scarier than Previously Reported, FORBES (Aug. 4, 2022), https://www.forbes.com/sites/paultassi/2022/08/04/bungie-harassment-over-destiny-2-has-been-scarier-than-previously-rep (...truncated)
