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Real Remedies for Virtual Injuries

34 Pages Posted: 16 Mar 2012 Last revised: 21 Aug 2014

Anita Bernstein

Brooklyn Law School

Date Written: March 19, 2012

Abstract

Social networking, which offers enhancements to human lives at a low marginal cost, also contributes to dignitary and other nonpecuniary harms. Statements and images presented in electronic media can give rise to defamation, invasion of privacy, trademark infringement, and false advertising claims. Accurate enough as descriptions of harm, these doctrines do not do an adequate job of repair. An injurious communication preserved by electronic means and distributed through social networking is more likely than its spoken or paper-written counterpart to spread (a phenomenon expressed in the metaphoric adjective “viral”), to reach people whose disesteem the victim cares about, and to retain power to inflict more harm after it has been adjudicated as unlawful. Injuries in the virtual realm call for remedies that recognize how information travels through — and lingers inside — electronic media. After summarizing how current remedies for virtual injuries fail to effect repair, this Article proposes a court-annexed alternative dispute resolution scheme.

Keywords: virtual, Internet, social network, defamation, privacy, trademark, alternative dispute resolution, First Amendment

Suggested Citation

Bernstein, Anita, Real Remedies for Virtual Injuries (March 19, 2012). North Carolina Law Review, Vol. 90, 2012; Brooklyn Law School, Legal Studies Paper No. 267. Available at SSRN: https://ssrn.com/abstract=2024661

Anita Bernstein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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