ABSTRACT
Cases across the common law world have recognised digital assets as property, but the question of how such rights should be protected against interferences remains contested. At present, the ‘chattel torts’ (conversion, trespass and reversionary injury) do not cover digital assets, leaving a gap in protection in respect of digital assets. There have been suggestions that the tort of conversion should be extended to cover digital assets, but I argue that this extension would be undesirable, and that the chattel torts should not be extended to cover digital assets. This is for three reasons. First, there are fundamental differences between physical and digital assets, meaning that the concepts and thresholds used in the chattel tort context generate uncertain results (and create substantial risks of incorrect results) in the digital asset context. Second, the rules governing the chattel torts are unsatisfactory and contain many negative characteristics, and so extending the chattel torts to digital assets would replicate the same negative characteristics in the digital asset context. Third, the combination of the first two factors substantially increases the risk of seven types of mistakes being made by judges (such as false analogies and opaque/circular reasoning). Ideally, the question of determining the proper regime applicable to digital asset interferences should be approached from a blank slate, with the normative issues considered from the ground up.
Liu, Hin, Interference Torts in the Digital Asset World (May 1, 2023).
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