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a) Lack of consent
A vendor can attempt to dispute a trespass claim on the grounds that the user consented to the terms of the contract. Even if consent was given for certain access, a user may still have a valid trespass to chattels complaint if the vendor has exceeded the contractual terms, if the contract is found to misrepresent the actual functioning of the product, or if the consent has been withdrawn. A vendor can be held liable for “any use exceeding the consent” given.” (Restatement (Second) of Torts § 256)
b) Actual harm
The precise criteria for ascertaining actual harm varies among states, in California, for instance, an electronic message can be deemed a trespass where the message interferes with the target computer’s operation, as long as a plaintiff can demonstrate either actual hardware damage or actual impaired functioning (see: Intel v. Hamidi, 30 Cal.4th 1342 (2003)). But the general concept of requiring impaired computer functioning has been adopted consistently and in showing impaired computer functioning, courts have usually emphasized system unavailability.
c) Intentionality
In clarifying the meaning of intentionality in the context of a trespass to chattels claim, § 217 of the Restatement (Second) of Torts states that “intention is present when an act is done for the purpose of using or otherwise intermeddling with a chattel or with knowledge that such an intermeddling will, to a substantial certainty, result from the act,” and that, furthermore, “[i]t is not necessary that the actor should know or have reason to know that such intermeddling is a violation of the possessory rights of another.”
Damages from a trespass claim are limited to the actual harm sustained by the plaintiff (which can include economic loss consequent on the trespass - e.g. loss of profit on a damaged chattel). In cases of dispossession, the plaintiff is always entitled to damages if they can prove the dispossession occurred, even if no quantifiable harm can be proven.
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