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Safety in the Metaverse

Safety in the Metaverse Image Credit: ismagilov/BigStockPhoto.com

Written by employment law experts at legal firm Cliffe Dekker Hofmeyr.

Introduction

Formerly believed to be a fantasy that could only exist in science fiction, the Metaverse is not only an idea far from being realised, but it is a way to the future that will dominate the world in the same way that the internet has done. The Metaverse is a futuristic real-life simulation where people from all walks of life can meet and live life in the same likeness as on earth, but with a few twists. Avatars, a central concept of the Metaverse, are a virtual representation of the user, or of the user's alter ego or character, in the virtual world of the Metaverse, similar to a game. [1] However, since the users behind the avatars have free will, the question arises - will it be safe in the Metaverse?

Can behaviour be regulated to prevent any infringements of human rights by avatars in the Metaverse?

The Metaverse allows avatars to interact in the same way that people in real life do, including the more nefarious interactions such as hate speech, harassment, defamation, and theft. Consequently, the Metaverse will need to be legally regulated to prevent infringements of human rights. However, while the Metaverse is undoubtedly a radical development, the law is no stranger to the need to evolve when faced with changes in society.  In fact, behaviour is already monitored in virtual spaces. In the judgment of Heroldt v Wills 2013 (2) SA 530 (GSJ), the court ordered the defendant to remove a defamatory statement post from Facebook. A tweet was declared hate speech by the High Court in South African Human Rights Commission v Khumalo 2019 (1) SA 289 (GJ). In the Netherlands, two minors were convicted of stealing virtual property, after they forced another user to transfer in-game items to them. [2] Japan has made cyber-bullying an offence, an offence that could lead to a prison sentence in real life. [3]

There are, however, obstacles to enforcing human rights in virtual spaces. The anonymity that will likely accompany the Metaverse will make it difficult to identify perpetrators. Avatars are often created with fictitious names with no resemblance to the user behind them. Identifying the user behind the avatar could be nearly impossible. However, this is where the providers of the Metaverse platforms can play a role. Similar to social media platforms (for example, Facebook), the Metaverse platforms will likely regulate the Metaverse through terms and conditions to which users must agree in order to access the Metaverse. [4] Those who violate the terms and conditions by, for example, harassing other users, could be reported and banned from access to the Metaverse. However, this will not be sufficient justice where a person suffers damages due to unacceptable conduct in the Metaverse, or where a person's dignity is impaired. It is also not always entirely effective, as evidenced by the racial abuse suffered by English footballers Marcus Rashford, Jadon Sancho and Bukayo Saka in recent months.[5] The social media platforms were expected to be at the forefront of punishing and preventing the harassment, but they lacked the ability to make the abusers suffer any real-life consequences. While law enforcement was able to arrest a number of perpetrators, many escaped without punishment.[6] One solution may be that users need to provide information such as their identity numbers and residential addresses when creating avatars, to make it possible to hold the user accountable if they commit an offence in the Metaverse. This could raise concerns over privacy and data protection, which has been in the spotlight in recent years. Therefore, the development of the law, or the creation of new laws, will need to carefully balance the need for regulation with the right to privacy.

Will people be able to do and say things in the Metaverse that are illegal in the real world?

Having digital avatars that represent actual people raises certain concerns such as questions about which crimes can be committed in the virtual world verses which crimes cannot. The answer to a question that one might pose as to whether avatars can commit crimes in the Metaverse which are otherwise illegal in the physical world is going to be a 'no'. Life and crime in the Metaverse will be exactly the same as life in the physical world. The problem or rather main issue with avatars is that over time, they might have the same rights that people in the real world also have. This emphasizes the concept of rights and legal personality as raised in an International Cyber-Security Law Review paper. [7] It is very possible that avatars will be granted separate legal personality. An example is that of a registered company, since companies have a separate legal personality, they can sue and be sued in their own name. In the same way as a company exercises both rights and obligations, and these are generally found in legislation. It stands to be shown, as to which laws would be dominantly applicable in the Metaverse and which laws might not. The question to ask is rather whether avatars will have the ability to function on their own albeit using artificial intelligence to perform tasks and functions that their owner would otherwise have performed personally. [8] Contrarily, if an avatar only performs tasks and activities when in the control of their physical world then the results of crime and its sanctions might be different. It is impossible to say that people will commit crimes that would be considered illegal in the physical world. It is going to be difficult for lawmakers to create a balance between protecting the rights of various stakeholders without affecting the intended purpose of the Metaverse.

Accordingly, it stands to be proven, but possibly most of the crimes that could be committed in the Metaverse might be of an emotional and psychological nature, but even if so, it would generally translate to the actual person in the physical world being impacted, and laws are likely to evolve to take account of this.

Will people be able to misrepresent themselves in the Metaverse?

The issue of anonymity in the Metaverse has been briefly mentioned, but the frequency of harassment in virtual spaces makes it necessary to discuss the issue further. On many social media sites, such as Reddit, 9gag, and 4chan, users can use any profile picture, name or description that they choose. There is no obstacle to a person pretending to be another gender, age, ethnicity, or nationality. In short, users never quite know who the person is with whom they are interacting. The Metaverse, which will likely provide similarly anonymity to its users, will face the same problems. The Metaverse may even provide a greater risk of misrepresentation – the appearances of avatars and the use of voice-modulating software could make a user's deception more convincing. Concealment  of identity behind that of avatars, users in the Metaverse may feel they can harass or emotionally and mentally attack other users without facing repercussions. They may also be able to earn the trust of other users through their misrepresentations, and then abuse that trust to siphon personal information for a nefarious purpose. This is known as "cat-fishing", a common occurrence in online dating where fake profiles based on misrepresentations are used to earn the trust (and sometimes even financial details) of the unwitting victim. An abundance of caution will be necessary when entering the Metaverse.

Conclusion

Much like the evolution of the internet, the Metaverse will likely increase misinformation, bullying, hate speech and even theft. A user's financial, emotional, and mental safety may be at risk, but the law needs to be ready to adapt to combat this risk and keep users safe. However, the time it will take for the law to develop makes it important for users of the Metaverse to act with caution and behave responsibly.

Authors:

  • Kgodisho Phashe: Associate in Employment Law practice with experience in various aspects of litigation
  • Fiona Leppan: Director in Employment Law practice, and Joint Head of the Mining & Minerals sector
  • Karabo Nemudibisa
  • Keagan Hyslop

Sources:

Author

Cliffe Dekker Hofmeyr is a full service law firm - with an extensive reach across Africa - consisting of more than 350 lawyers and a track record spanning over 168 years.

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