The metaverse: virtual offences, real world penalties?

Towards the end of 2021, Nina Patel, co-founder and VP of metaverse research, wrote about her experience of sexual harassment in the Metaverse’s Venues. Patel reported how her avatar was verbally and sexually assaulted by three to four male avatars, who also took and later shared with her photos of the incident. She wrote: ‘In some capacity, my physiological and psychological response was as though it happened in reality.’

It appears that Patel is not alone. The Centre for Countering Digital Hate found that users of metaverse’s VR chat, including children, are exposed to abusive behaviour online every seven minutes over the period of 12 hours. This includes exposure to sexual content, bullying, sexual harassment and abuse, grooming and threats of violence (counterhate.com/metaverse). 49 per cent of women surveyed by Extended Mind reported at least one experience of sexual harassment when using VR products (extendedmind.io/the-extended-mind-blog/2018/04/04/2018-4-4-virtual-harassment-the-social-experience-of-600-regular-virtual-reality-vrusers).

The virtual future is bright and exciting for some – but are cracks in this brand new shiny reality starting to show even before it has properly taken off?

Here comes the metaverse – but what is it?

The metaverse is here and it is trending: big players like Nike, Tinder and Microsoft are keen to secure their chunk of metaspace, promising their users a near-real-life quality of virtual interactions. But what actually is it?

A simple answer to this question is: it is complicated. The metaverse broadly refers to a construct of various technologies, including virtual reality (or realities) which continue to exist when you take your headset off, and augmented reality that encompasses the virtual and ‘real’ (or physical) world. The metaverse is not just another game in which, by putting on a VR headset, you can experience being a superhero ridding the world of an alien army threatening to destroy the planet. It is a parallel universe, allowing those in it to do – and experience – the same things they would do in real life (meet friends, work, go to live music events and on dates) and more, without the need to step foot outside their homes. The aim of the metaverse is to create a virtual world that feels as real as the one we currently inhabit – and the technology is being continually developed to facilitate this. It includes innovative tools, allowing us to experience touch, kinaesthesia – and even a virtual sense of smell.

Here comes the law – but is it enough?   

Recently, an online gaming platform, Roblox, won a lawsuit against Benjamin Simon, a content creator, who was alleged to have violated the platform’s terms of use by engaging in various forms of harassment against other users (amongst a long list of other alleged violations: independent.co.uk/tech/roblox-ruben-sim-cybermob-hitler-terrorist-b1964794.html). Facebook’s response to Patel’s complaint was the addition of a safety feature (a ‘bubble’) that protects an avatar from unwanted behaviour from other avatars. While it is not difficult to see how a user can face legal consequences for a breach of contractual obligations in respect of their behaviour while in the metaverse, is there scope to go further?

Meta-law is not here yet – but this should not be cause for collective legal panic, or at least, not just yet. While the law can sometimes struggle to keep up with the exponential growth of technology, it is not entirely redundant in the metaverse. This is certainly true of some aspects of the criminal law, which have adapted well to dealing with online behaviours like harassment and malicious communications. In addition, the Online Safety Bill had its second reading in the House of Commons on 19 April 2022. The Bill aims to ensure online platforms have systems in place that deal with illegal and harmful content. It introduces four new criminal offences: a harm-based communication offence, a false communication offence, a threatening communication offence and a cyber-flashing offence. Provided a person behind a harassing avatar can be identified, there should be no bar to applying such laws to the meta-space. It is easy to see how, in situations similar to that experienced by Patel, an offence of harassment might be made out – behaviour similar to this online has been successfully prosecuted in the past.

Sexual assault online – does the law stand up to scrutiny?

The law does not have the same readily available answer to contact offences, like sexual assault, when they have been committed in a virtual space. For contact offences to be made out, a level of physical interaction is required.

Section 3 of the Sexual Offences Act 2003 defines sexual assault as follows:

(1) A person (A) commits an offence if—

(a) he intentionally touches another person (B),

(b) the touching is sexual,

(c) B does not consent to the touching, and

(d) A does not reasonably believe that B consents.

In a scenario where Person A’s avatar virtually gropes or sexually touches Person B’s avatar, without Person B’s consent and without a reasonable belief in consent, proving s3(1)(c) and (d) of the Sexual Offences Act 2003 should be relatively straightforward. Proving touch is significantly more problematic – and there is no doubt it would require some legal gymnastics to decide whether a virtual touching of an avatar by another avatar can be considered ‘touching’ for the purposes of s3(1)(a) and (b). The use of haptic suits by avatars might make it easier for juries and judges to grapple with the conundrum. Haptic suits allow those in virtual reality to experience sensations, like touch by other users. However, if the offence is not made out, it is possible that an attempted sexual assault could be considered instead.

What about virtual sex?

The technology allowing avatars to have sex as we know it in the real world (and the persons behind the avatars to experience it physically) is not yet here. When (if?) it does arrive, the courts are likely going to have to grapple with the issue around offences of rape and assault by penetration to see how far the law in the Sexual Offences Act 2003 can be stretched, if at all. It could possibly be a catalyst for the complete overhaul of the law in this area that some have been advocating for some time.

Earlier this year, philosopher David Calmers argued in the New Scientist (29 January 2022) that experiences in virtual worlds, including social interactions are: “as real as reality, just different”. It is a reasonable to expect that an experience like sexual assault, including an attempted one will not be dismissed by courts in the ‘real world’ simply because it occurred in a virtual one, especially when some laws are already well equipped to deal with online harms.

A question of jurisdiction

The metaverse is a space that can be accessed from anywhere in the world – it does not have borders and, problematically, does not have jurisdictions.

It is easy to imagine scenarios where either the complainant or a suspect(s) in a case involving sexual misconduct in the metaverse are based in different, often multiple, jurisdictions. This does not necessarily pose an insurmountable obstacle to prosecutions, but it will no doubt force prosecutors to think more creatively about resolving these jurisdictional conundrums. At the same time it is not completely out of the realm of possibility that someone, somewhere will dream up a meta-jurisdiction, a virtual reality version of universal jurisdiction that resolves jurisdictional issues all together.

It is worth remembering that UK’s domestic law has already solved jurisdictional issues when it comes to prosecution of sexual offences committed abroad, although such solution only extends to a non-virtual world. s72 of the Sexual Offences Act 2003 extends the extraterritorial jurisdiction of criminal courts in England and Wales to certain sexual offences committed against children abroad. s2(1)(c) of Part 1 of Schedule 3 of the Domestic Abuse Act 2021 does the same for offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent (ss1-4 of the Sexual Offences Act 2003) when these are committed abroad against adults. In both cases, the alleged perpetrator needs to be either a UK national or a resident. It would be interesting to see whether judges would show willing to interpret the metaverse as ‘abroad’ in the context of prosecution of offences committed in the virtual world.

Conclusion     

When it comes to the metaverse, there is a great deal of ‘new’ to experience, be curious about, process, grapple with and regulate. Designed to be an extension of real life, the brave new virtual world is equally, if not more, prone to transgression than the one we currently inhabit. The metaverse is no longer something from sci-fi movies; it is here – and it is developing fast. Avatar interactions that feel like those in real life between real humans bring added complexities which will require testing – and, no doubt, changes to the law in the future. That said, it might still be a while before the legal profession is forced to don virtual wigs and gowns and enter meta-courts.

Magda Zima is an associate in the criminal litigation team with Kingsley Napley LLP: kingsleynapley.co.uk