Major technological advances always create new forms of injury which require updating the law of torts. For example, it is difficult to think of a tort right, defense or remedy that has not been impacted by widespread adoption of the automobile.¹ Today, the judiciary is again confronted with legal gaps arising from the rapidly expanding use and abuse of the Internet. Automobile law took decades to develop, whereas cybertorts are evolving at "Internet speed." Cyberwrongs such as unwanted spam e-mail, the extraction of data by spiders, identity theft, online stalking, and cyber smearing are presenting the judiciary with complex dilemmas. ² Creative judges have adapted personal property torts such as trespass to chattels and conversion to redress economic losses, but have yet to recognize negligence and strict liability actions.

This Article presents the first comprehensive empirical study of the role of judicial control in cybertort litigation. Part I develops a typology of the path of the tort law through cyberspace. Judges have been willing to stretch intentional torts to cyberspace, but are wary of formulating duties of care and strict liability standards to redress online injuries. Part II provides the only statistical portrait of Internet-related torts for the past decade. An exhaustive nationwide search of all available published and unpublished sources uncovered only 445 Internet-related cases in which plaintiffs obtained equitable remedies or monetary damages. Nearly two-thirds of all plaintiff victories were in the field of intellectual property or domain name disputes. Internet torts constitute about a quarter of this research sample.

Statistical findings are presented on the incidence, size, parties, court type, role of the jury, post-verdict adjustments, punitive damages frequencies and ratios, and judicial control of cybertorts. This overview of the legal landscape reveals that virtual torts differ substantially from brick and mortar causes of action. While greater than 90% of traditional torts are negligence-based, there are almost no negligence cases in cyberspace. The most common types of litigation are publication torts, business torts, and personal property torts that are filed principally by large corporations and Internet providers. The most dramatic finding is the paucity of new-space torts in strict liability and almost every other doctrinal area. Statutory immunities, tort reforms, and strict judicial oversight have stunted the development of torts in cyberspace. Just as in the age of the automobile, courts have not only the right but the duty to update the law.

²See generally, Michael L. Rustad & Cyrus Daftary, The E-Business Legal Handbook: 2003 Edition (Aspen Law & Business, 2003).