Part 4: Potential Tort Liability Arising From Virtual Reality – Roblox and Beyond

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This is the fourth lecture in the series where we posed the question whether tort liability may follow from a wrongdoing in the virtual world. In this lecture we analyse the issue by applying the remaining four factors: standard of care, causation, forseeability and damages.

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.

This is our 4th lecture in this series—where we had initially posed the question whether any tort liability could arise from a wrongdoing in the virtual world.  We discussed this in our first 3 lectures. We talked about how virtual reality operates.  What is the kind of interaction that a real person can have in the virtual world? What kind of impact a real person experiences from any conduct in the virtual world? We talked about the reality of damages or harm, especially the mental trauma that one can suffer because of the wrongdoing in the virtual world.  Then in the 3rd lecture we talked about some of the aspects of tort of negligence—there were 5 elements of tort of negligence that we talked about. We emphasized our discussion on the duty of care – which is the most important point in the tort of negligence—especially when you’re looking for a new duty of care towards the defendant.  We explore that. 

 In today’s lecture we will talk about the rest of the factors in the tort of negligence and see whether there is a real chance that a tort liability may follow from wrongdoing tortious conduct in the virtual world.

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

We talked about the elements of tort of negligence. These are 5 elements that the defendant owes to the plaintiff’s duty of care.  As I said we spend significant time in the last lecture talking about whether there is a duty of care for the online virtual world providers – whether there is a duty of care for the person who uses an avatar to commit a wrongdoing to another avatar, could there be a duty of care.  We discussed that in the previous lecture. 

The 2nd element is whether the defendant breached the standard of care and the standard of care is a reasonable person’s standard. We will talk about that today and whether the defendant’s breach caused the plaintiff’s injury or loss which is causation.  The injury or harm – whether that was foreseeable or not. And, then finally, did the plaintiff actually suffer harm or loss. Let’s go over these one by one.

Standard of care: It’s called also called “reasonable person’s standard”. It is defined as what a reasonable person would have done in those circumstances – where the circumstances means that specific act that we believe is the tortious conduct, is the wrongdoing.

An example of this could be when a person sues a surgeon for not performing a surgery correctly. Then the court will consider what another reasonably qualified surgeon would have done in those circumstances.  The court has to determine 1st what is the standard of care that that person (the defendant) ought to have followed.  

Again, because it’s a reasonable person standard, the court objectively looks at what another reasonable person with the same qualifications would have done. In case of surgery, the court will determine, for example, what are the guidelines of the college (the regulatory college) for the physicians. What are the guidelines? What is it that another surgeon would have done in the similar situation and then determine whether the conduct in question, whether that conduct in fact breached that standard or not.  If a reasonably qualified surgeon would have done the same thing that this surgeon had done, then, obviously the court will conclude that the standard was not breached by the surgeon.  So there will be no tort liability.

Now in case of online gaming industry, virtual world, we’re talking about Roblox and because Roblox or other similar gaming present itself as imagination platforms, the question is what would another reasonably imaginative platform what would they have done in terms of the creation of that imagination part. We are restricting ourselves to Roblox because Roblox presents itself as an imagination platform that targets kids as young as 6,7 years old. What a reasonable company that is creating imagination platforms for young kids 6,7 year olds, would they create an imagination platform that allows for example, pornography to be shown to the young children. The answer would be no. Would it allow young children to be exposed to sexual conduct or misconduct in that imagination platform?  The answer will be no. Would it allow online bullying through virtual world and the answer would be most likely be no.  

The question then – the standard of care – when the court is considering this question is that if it’s an imagination platform, would there be certain limits to that imagination platform that ought to be put in place.  That question is dependent upon who is the user of platform, what is the purpose of platform, this is not a platform for sexual games, it is a platform for children to play ordinary games.  Those are the things that the court will determine: what a reasonable company that would have created that platform would have done in similar circumstances.

The next question is, obviously, even if there is harm, was the harm actually caused by the defendant’s breach.  In our example and we took the example of that 7 year old that experienced virtual sexual assault in Roblox while playing a game.  If the harm is mental trauma, the question for the court to consider is, was that mental trauma caused by the specific wrongdoing (in our case the virtual sexual assault), is that what caused that injury or harm or loss.  Because there could be other circumstances that may have caused mental trauma.  The child may have been experiencing some difficulties at home, maybe her parents are going through some difficult times, maybe the child has experienced the loss of a loved one – any of those circumstances.  Even though there is trauma or harm, what actually caused that trauma is a question.  If the harm or trauma was not caused by the defendant’s brief then the causation is not established.  

It’s a difficult question, especially when you’re dealing with mental trauma and issues of mental suffering.  It is easier to show causation, for example, in a motor vehicle accident where you know prior to the accident your legs were fine, your arms were fine but due to the accident you suffered a broken bone or something.  That’s easier to show because it is visual. It can be shown by evidence that you were fine before the accident and after the accident you have suffered this kind of thing. Even though causation itself can get complicated but let’s not get into that discussion at this stage.  The point is that causation needs to be shown as an element of negligence in our scenario.

The 4th element is foreseeability.  In foreseeability, could a reasonable person foresee or anticipate the injury or harm.  Was it just a freak accident or is it something that could be foreseen? Can it be foreseen that if you conduct yourself or someone conducts herself or himself in such a way in the virtual world that conduct, that wrongdoing may cause real harm to somebody? Is that foreseeable?

Foreseeability is an interesting thing.  Foreseeability is based on common sense but it is also based upon our experiences.  If you pose this question or if you had posed this question 20 or 30 years ago when the virtual reality was just coming into existence, a lot of people may not have foreseen that the conduct of this nature may cause real harm.  Some people may have been anticipated it but a lot of people may not have.  As we experience or as we will experience more injury more harm, unfortunately, it will be easier for us to recognize the foreseeability of the conduct and the harm.  Foreseeability is also dependent upon our experiences.

Another example that I can give you is with respect to toys. Right now we live in an age where we have so many toys and all kinds of toys for children and you will notice that the boxes have labels on toys and it would indicate that certain toys are suitable for, let’s say, children of 7 years and older. It indicates or suggests that: number one, the toys may not be suitable because the younger kids or toddlers may not have the capacity to play with that toy.  Also, that the children, the younger children, the toddlers may experience some hazards, some risks.

For example we know that if you give anything of small size to toddlers, the first thing they do is they pick it up and put it in their mouth. Choking hazard toys are an example of that. There are age restrictions on that.  Our foreseeability of the toddler will picking up anything and putting it in his mouth and could cause choking is based on our experience. Children, young children in various circumstances suffered these choking issues and then the law became aware of the foreseeability of the harm – which resulted in certain labels and warnings on these toys and our education on these issues.  Foreseeability is again another element that needs to be proven with respect to the tort of negligence.

Final element is proving damages.  We need to show to the court what was the harm or loss.  In our example the harm or loss is mental trauma or mental suffering.  Then the next element is how do you prove it.  You have to prove that. As I said it is easier to show physical harm because you can see, you can visualize a broken bone a broken finger and the harm is easy to visualize.  In cases of mental trauma even though courts have awarded damages for a long time on mental suffering and mental trauma, they always struggle with it because it is not easy to understand someone’s mental trauma or suffering.  It is not usual. You have to rely on medical evidence. You have to rely on circumstantial evidence.

In one of the examples that we had given in our Lecture 1, there was a 7-year old child who was groomed in this online game, also in Roblox, through a 3rd party app, to send his sexually explicit images to other people.  His parents recognized issues because the child was socially withdrawn from family activities.  He was constantly withdrawn from them. When you are showing mental trauma or mental suffering in those cases, then there is circumstantial evidence that you can bring—inability to interact socially or isolation and all of these things.  It is possible to do that.  Point is that regardless whatever damage one person is claiming at the end of the day you have to prove those damages to the court to be able to get remedy from them.

In conclusion, what we have done in these 4 lectures is, I have proposed and at least in that discussion that wrongdoing in the virtual world, it is possible it will lead to a liability in the real world because the harm is real; if the harm is real then it is easy to foresee, that that sort of conduct could cause those harms—if the harm is real then, obviously, it is foreseeable that this will cause it.  We had that discussion but that’s not the end of discussion because there are many defenses to tort liability. 

This is where the rubber hits the road—because it is in those defenses that a lot of defendants will try to get away from tort liability.  One example of those defenses is contractual waivers.  We have all seen those, all the time, all around us. You go to a park you sign a contractual waiver, you go to skiing you sign a contractual waiver, which indicates that if you get injured in skiing the ski resort is not liable.  These contractual waivers are pretty strong.  They have a way for the defendant to avoid liability.

In the U.S. there is the First Amendment in the Constitution.  There are cases that indicate that online gaming is considered an expression and so they’re protected under the First Amendment of the Constitution in United States. What we will do, we will cover these defenses in our next lecture and see what are the kind of defences that are available to the virtual world providers and people who may use virtual world to do certain wrongdoings in the virtual world, what kind of defenses they may have and then we’ll discuss whether those defences would make sense in the coming months or years when these issues will come forth to the court.  Please stay tuned.  We will have another lecture shortly.

Thank-you for watching.

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