Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

This is our 5th and last lecture on this topic. We started the discussion by posing a question whether tort liability could arise from a virtual misconduct. We went through this discussion in detail in our last 4 lectures. We gave you some examples of virtual misconduct that occurred in reality in the last few years and we talked about what could be the damages that may arise from that virtual misconduct. Could those damages be considered real? And whether a duty of care could genuinely arise from such virtual misconduct?  In the last lecture we went through all of the steps in figuring out whether a tort liability may follow from a virtual misconduct. 

In today’s lecture, assuming that there is a potential tort liability, we will talk about some of the defenses that could be raised to defeat a claim in tort liability.

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

The most common defense that will be raised in tort claims as always is contractual waivers.  We will explain briefly what kind of defense that is. In United States there is also the defense under First Amendment for these kinds of claims that may be raised.  In Canada, Section 2 of the Charter can be raised which provides protection to expression and then there may be some additional statutory protections in the United States that we will cover today.

Contractual waivers is the most common defense. And the defense may apply with respect to third party materials/third party conduct.  The defense may apply in the sense that it may be argued that you use whatever activity that you are performing at your own risk.  That risk is downloaded onto you.  Then there may be a broader category of no responsibility or complete waiver of any activities within the contract.  We sign these waivers all the time—in all kinds of activities—whether you go for skiing or skating, you were given a document, which is a contract, and you have to sign it for you to be allowed to do skating or skiing in that arena; you are required to sign that waiver and that waiver may have specific clauses that will indicate what kind of liability is waived by you when you sign that waiver.

Now in our case let’s take the example of Roblox. We talked about Roblox as an example of some of the cases that we have described. We talked about that seven-year old who was groomed to send his sexual images to others through third-party material.  So what does Roblox say with respect to third-party material? If you go on their website—with respect to third party material, you will see this contractual waiver which says:

“you agree to use the service at your sole risk and that we shall not have any liability to you for content that may be found to be offensive, indecent, objectionable, inaccurate, incomplete, untimely, invalid, illegal, of poor quality or otherwise”.

A pretty broad clause, there, which protects all kinds of things arising / all kinds of misconduct that may arise from third-party material.  In our example, it was a third party communication app that the child had used not owned by Roblox.  This particular clause would protect or at least Roblox would argue that it is protected from any liability because of this particular clause.

Roblox also has a very broad no responsibility clause which is all in bold:

“you assume all risk for any damage that may result from your use of or access to the service, your dealing with any other users of the service and any of the materials or content available through the service…”

Pretty broad again—a clause that protects Roblox from any responsibility.  What will happen in a scenario where, for example, Roblox or another game provider is sued under liability for tortious conduct virtual misconduct of another user? They will bring up these contracts, which are on their website.  These are essentially the terms of use for anyone who is using Roblox—essentially agrees to these terms and that is how that person is allowed to use that game.  They will come up and they will say: “look, we have this clause that protects us from liability and, therefore, even though you find that there is a valid tortious claim against us, because of this contractual waiver there should not be any liability assigned to us”.  This kind of contractual waivers are used all the time in tort cases

Whether the court will agree to enforce that contractual waiver is a separate discussion.  I think I’ll post a separate lecture on contractual waivers alone just so that you have an understanding of what are those circumstances when these contractual waivers are actually in force and when are these waivers not in force.  Because, like me, many of us would not have even read these kind of waivers  and yet when we check that box and say we agree to this waiver, then to what extent are we held accountable for our acceptance of that Terms of Service.  That’s a separate discussion we will have in a future lecture.

In the United States, First Amendment has been and will be used by virtual providers and virtual users as a defense for any tort liability.  There was a case back in 1969 called Stanley v. Georgia. In that case Mr. Stanley was charged for possessing obscene material (pornography).  The case went all the way to the United States Supreme Court in which the US Supreme Court held, “that makers of constitution sought to protect Americans in their belief, thoughts, emotions and sensations”.  This is a bit more.  We can say that this is not just an expression, it is more than expression: “beliefs, thoughts, emotions and sensations” are all protected under the First Amendment. The virtual world providers may argue that the fantasy world of virtual reality is also similarly protected under First Amendment. This argument, I believe, will definitely be advanced.

There was another case in 1974 called Spence v. Washington. It also went to United States Supreme Court and it resulted in a test called “Spence Test”.  In that case a student was charged—he displayed an American flag upside down with a peace symbol affixed to it.  The case went on to the U.S. Supreme Court and the U.S. Supreme Court had to decide whether that particular act of displaying the American flag upside down with a peace symbol—was that an “expression” and if it was an expression, whether it was protected under the First Amendment.

The court held that “an intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it”. Essentially it turn into two two part-test later on—whether there was a particular message present—whatever expression we’re talking about, does it have a message and would people generally understand that to be a message.  Those are the two parts test.  That will also be applied in the virtual world—whether the content of the virtual world is an expression and if it is an expression, whether it’s protected under First Amendment.

Most recently this came to the U.S. Supreme Court in 2011—Brown v. Entertainment Merchants Association.  In this case it was pretty much on topic because that dealt with a video game—a violent video game and whether those games could be sold to children without their parental supervision. There was a California law that actually banned it. That was challenged. It went all the way to the U.S. Supreme Court.  What did the Supreme Court say?  They basically struck down the law and they said: like the protected books plays in movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).  That suffices to confer First Amendment protection.

Based on the laws, on the cases in the U.S. Supreme Court, it will most certainly be the case that companies like Roblox and others and users who have been sued for the tort of negligence for their misconduct, will bring this First Amendment argument through these cases to avoid liability of tort of negligence.

Canadian Charter has Section 2 which protects expression—but in Canada it’s a bit different.  In Canada expression is not an absolute right.  Section 1 allows certain limitations on that right.  One common example of this is: hate speech—hate speech is not a protected expression.  What the court does in Canada, is it weighs the rights, it weighs what is the harm in case of hate speech, what is the harm that it causes to society or to people or to certain people and then what is the harm on the other hand—what is the harm if you restrict that expression.  That is the exercise that courts in Canada do to determine whether a specific right is protected under Section 2 of the Charter. In Canada this argument will come into play.

There could be some statutes of protection.  In the United States, there’s something called Communications Decency Act and there is Section 230 of that Act which says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provider provided by another information content provider”.  Essentially under this Section virtual reality operator providers would argue that they are not liable for the misconduct of their users.

In essence what we have done in all these 5 lectures is, we have said this was an exploratory discussion.  We believe that these cases will come to court, most certainly come to court, and this issue will be explored in more detail where virtual reality and the real world will collide.  The courts will have to grapple with all of these issues about duty of care, about the reality of damages and whether the court will apply the waivers and whether the virtual reality conduct will be protected under the First Amendment in the United States.  All of these will be the subject of great discussion in the coming years.  We will surely be watching these and will bring you news if we find any cases that come to the courts and are decided.

Thank-you for watching and participating in this discussion.