Part 2: Potential Tort Liability Arising From Virtual Reality – Roblox and Beyond

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This is the second lecture in the series which explores whether tort liability may flow from wrongdoings in the virtual world. In this lecture, we explore whether the virtual wrongdoing may cause real harm to a human being.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.


Show Notes:


Lecture Slides:

Welcome to YouCounsel.

In our yesterday’s lecture we posed this question and it was an exploratory question – whether misconduct in the virtual world, could that lead to tort liability in the real world?  We had some preliminary discussion in yesterday’s lecture. We concluded by raising a follow-up question and that question was whether the harm that is caused by that virtual misconduct or wrongdoing, is that harm real?  Because if the harm is real, if the damage is real, then there is a potential possibility that a tort action may be a suitable way to go.  We will explore this reality of the harm in today’s lecture.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

Is the harm real?  We will compare real harm in the real world versus virtual harm.  The example we have is the sexual assault example.  In a real sexual assault that occurs between two individuals/two human beings: there are two components/two impacts/two kinds of damages that may flow from that sexual assault in the real world. One kind of damage is real physical harm and this is the kind of harm that happens to the physical body of the victim—the biological harm that is caused (if you can say that); and, the second component is of course the mental harm; the mental suffering that is caused to that person.

With respect to physical harm, in a real sexual assault situation, the harm could be in any shape or form. It could be as simple as having bruises on one’s body to much severe injuries to that person’s body.  But not in cases of virtual sexual assault—that physical harm does not exist. At least it doesn’t exist as of today. We talked about the concept/the technology of haptics in our lecture yesterday, which allows our bodies, through haptics, to feel the impact (physical touch/physical impact) of something and how that technology will develop in the future.  It is hard to say that now—but if by virtue of using haptics, can a person suffer much more severe physical harm? Then, that is something that we will find out in the future. 

But as of today in cases of virtual sexual assault the harm is not really physical but it does have or may have certain physical manifestations. For example the person, the one who has suffered virtual sexual assault may have sleep deprivation, nausea and other sort of physical manifestations obviously coming through that mental trauma.  There may be physical manifestations that could be considered physical harm.  In cases of mental harm, the scholars who have considered this topic have stated that in terms of the mental harm, the emotional harm there isn’t much difference.  I think the harm in cases of real sexual assault and cases of virtual sexual assault is pretty similar when it comes to the mental harm. They suffer similar emotional trauma; the feelings of harm to one’s dignity is quite similar; feelings of helplessness are quite similar.  Often women who have suffered virtual sexual assaults and physical sexual assaults have indicated that for example in instances of groping whether it’s in virtual world or real world the feeling of being violated and feeling of helplessness is quite similar.  The academic literature suggests that mental/emotional harm whether it’s sexual or real or in the virtual world is quite similar. 

One of the things that you want to keep in mind about the virtual world is that in the virtual world when you join a virtual world scenario, you are expected to give up a lot of control to be able to experience true immersion.  The participants in the virtual world are expected to suspend their disbelief of the virtual world.  In virtual world environment, when you join in you are expected to give up a lot of control to that world / to the operators of that world.  In those scenarios, (if you) if your avatar is acting in a way that is your authentic self, then you will feel much more connected to that avatar and similarly if the avatar experiences virtual sexual assault in this case, then the impact / the mental impact of that could be significant and not much different than the real trauma.

On the basis of what we have discussed, I would argue that in cases of virtual misconduct as far as the mental harm/the mental trauma is concerned, that could be sufficient for a court to find that there is real harm / there’s real damage.  And because of that real harm or real damages this could be something that could be pursued in court as a tort action.

Another example of this kind of online harm which has been established for quite some time is from online bullying. We all know that many young adults who have suffered from online bullying have significantly suffered mentally and in some cases some of these young adults have ended up committing suicide.  There has been a significant impact of online bullying which is all online but it causes significant harm to the people who are the targets of that. 

The concept is similar—of course it is slightly different in the sense that in virtual world where we’re experiencing that through the avatars but the transmission of that harm is conceivable to the real person who is the victim/who is owning that avatar.  If the harm is real and there’s potential liability that may flow, who are the parties that could be held potentially liable?  There are two parties that come to our mind quite simply. First one is, obviously, the provider of that virtual world.  It could be a gaming company.  In our example we took the examples of Roblox and another, QuiVR—those were the two gaming companies.  These could be considered the defendants in a virtual sexual assault case because they are simply the providers of that virtual world.  Remember if you understand from the previous lecture, this virtual world is all digital.  It is computer generated. It is a creation of that company or that organization that has created it.  The person who has committed that virtual sexual assault (in our previous example of that seven-year old girl who had experienced that sexual virtual assault in Roblox)—in that case the assault occurred because the gaming platform had allowed or had the capacity for the developers to develop these kind of programs which could commit that kind of wrongdoing.  These sort of virtual world platform are generally imagination platforms.  Roblox markets itself as an imagination platform.  It gives children and developers the opportunity to create their own environment in that world / create their own games.  When you give that much freedom to create their own games – while they can create good experiences, they can also create bad experiences.  It is conceivable that the liability because of these bad experiences, because of these wrongdoings it is conceivable, is foreseeable that the creator of that world could be held liable for that tortious conduct.

Now the second person or persons could be the people whose avatars actually cause that harm. Remember that avatar is functioning because of the creation of a real human being behind that.  So far we are in the world when we get to the world of artificial intelligence where our avatars itself are creations of artificial intelligence, that will be a separate debate.  But at this stage, these avatars are functioning because of the controls of a human being behind it.  Could that human being be held liable?  Yes, because that human being may be held liable for the conduct of that particular avatar.

Again in the example of that 7-year old girl, if her parents had chosen to, let’s say, bring a court action against those individuals, then one of the ways they would have done so is to demand from Roblox to disclose the identities of those individuals who had those accounts.  If Roblox would deny it—which it could because of privacy reasons, they could very well go and obtain a court order compelling the gaming company to provide the information of those individuals. So those individuals could be sued, as well for their conduct in the virtual world.

Ok, now we come to a stage where we have indicated that damages could be real. And if damages are real, then there’s a possibility that you can pursue it in court.  But that is not the complete tort liability analysis.  If you have watched my lecture on the basic test of court liability, there are several factors that we have to consider. What we’ll do is that we will consider that in our next lecture.  Damages is one part but remember that duty of care is one of the crucial parts of tort analysis and we have to figure out whether the gaming company or that individual whose avatar caused this harm, do they owe a duty of care to the person who suffered that harm.

We will do that tort analysis in the next lecture and stay tuned for that.  We will bring it out shortly and thank-you for watching.

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