Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In today’s lecture, we will consider / we will pose a question.  Then we’ll try to find an answer to that question, through discussion, in this lecture—whether there could be any tort liability that may arise from a wrongdoing or misconduct in the virtual world.  We will consider online games such as road blocks and others where we are able to live in the virtual world and are able to interact with each other through our avatars in the virtual world. Now we are only considering tort liability in this lecture we are not considering criminal liability or contractual liability or any other area of law.  One of the reasons why we are considering tort liability is because tort law, in my view, is quite flexible. It has the capacity to evolve with changing circumstances. I believe that it has the capacity to consider this question and deal with this question in our real world.

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 any referrals.

Within the context of this discussion about conduct in the virtual world, we will consider “virtual assault”.  What is virtual assault?  In a virtual assault the victim is an avatar and the wrongdoer the offender is an avatar or could be more than one avatars.  Why I have picked this example of virtual assault is because there are some real examples in the past (in the near past) where this kind of occurrence has occurred (has happened). I’ll tell you some of the cases that have happened.

One instance was where a 7 year old girl was playing row blocks and her avatar was sexually assaulted in row blocks.  This was out in the news I believe in 2018. The girl was playing this game in an avatar—a little girl blond hair wearing a T-shirt and jeans.  Her avatar was graphically sexually assaulted by two male avatars on a playground in the game.  Her mom was sitting next to her. She was able to witness this.  She was horrified. She raised this issue—she brought this to the media and I believe Roblox was contacted. Roblox was able to identify the accounts which were used by the perpetrators—by the people / persons who had changed the coding in the game and caused that sexual graphic / sexual virtual assault to that avatar. Then some actions were taken but no legal action was taken. Roblox was not sued the other party who may have been responsible was not sued (to my knowledge) and so the matter ended there.

That was one example of a virtual assault that occurred in a game. There was another case that happened where a child who was also using Roblox (was using third party apps on a Roblox) and through those apps the child was groomed into sending sexually explicit images of himself to others. That was something that was found by his mother again and it was reported. It was reported (I think, I believe on BBC). Again, Roblox indicated that third party apps are not owned by Roblox.  When you’re using third party apps, then you should be careful about who you’re communicating with and what you’re communicating.

Then there was another example where a woman was virtually assaulted playing a game called QuiVR.  In this game there was a user named BigBro442 who virtuallyrubbed her chest and made other gestures—sexually explicit gestures towards her.  She tried to get away from this person and then that avatar kept chasing her avatar.

These are 3 examples in the recent past where there were virtual assaults—not virtual assault in second example but definitely in the first and the third examples. We will consider those were virtual assault.

A very obvious question and a very obvious defence that can be raised as well is, “this is all happening in the virtual world; you have to log into your computer you have to log into that specific game; get into that virtual world; then you can log out—if someone is bothering you /someone is trying to cause (you) any harm to your avatar, you can simply log out and move away and the harm is not real, it is done to that avatar. The question for us or for the laws to consider is: whether the harm that is being done to that avatar, could that harm be real for the person behind that avatar? The person whose avatar is being harmed / assaulted / sexually assaulted, is that person suffering real harm?

In order to understand that, I think, we need to have some understanding of what is virtual reality (VR). I’m not an expert in virtual reality, but, I have some basic understanding which I will share.  Virtual reality is all computer generated. I believe we all understand that. What virtual reality does—is it recreates or simulates real life environment—our situations. But it’s all computer generated.  You have to be logged into whatever system is; then you get into that environment which is virtual but it imitates the real world—it simulates the real world.  How do we experience virtual reality—primarily through vision and hearing.  We have these headsets (if you have used them, you know what they look like) but if you have not here are some of the pictures—you can see these are virtual headsets. The screens are in front of your eyes and you have these headsets on your ears. You are able to experience the virtual world through those headsets. You can see and you can hear. That’s how you interact and experience the virtual world.

There’s something else called augmented reality (AR)—which is different than virtual reality.  What is augmented reality?  It is also computer generated but augmented reality actually sits on top of the real world. It is sort of superimposed ilayer (which is computer generated layer).  It sits on top of your real world so it’s different from virtual reality.  Augmented reality essentially makes your interaction with the real world a bit more meaningful. There are some examples.

One example is common in the retail world. Augmented reality apps are being used in retail world already, quite frequently, and it’s going to grow and one example is when you are planning to buy furniture.  Let’s say you go to the shop or you go online and you pick up a sofa set.  You have to bring that sofa set in to your house, put it in your living room and then see whether you like it, once it’s there.  How does it look, how does the size look, how does the color look, and what not.  If you don’t like it you may have the ability to return the sofa set.  But if you have that augmented reality app then what you’re able to do is that you can actually see that particular sofa set through augmented reality in your living room.  You’ll be able to see its size—in comparison to the size of the living room; you’ll be able to see the colors, the colors of the wall and whatnot; whether it matches, so on and so forth—without actually bringing the sofa set out.  Through augmented reality, by super imposing digitized computer generated enhancements you are able to experience that reality in a more meaningful way.

There are other examples. Augmented reality will be used in surgery (if it’s not already being used).  It will have a significant role in neurosurgery through 3D imaging (3D models), in navigation, military and whatnot. Augmented reality actually enhances your real world.

What is happening now is that VR and AR are increasingly working in conjunction. One of the ways that they work in conjunction is something called “Haptics”. And if you don’t know, haptics is simply a tool that provides an experience of touch by applying vibrations, motions and/or forces to the user. One example that you, or, most of us, may have experienced is through the use of the controllers or joysticks when you are using a controller for example in a car racing game. You could feel the vibrations in your hand as the car moves in the game.  You can experience those vibrations in your hand and that is done through haptics. But the haptics world has exploded.  There is significant advancement in haptics. So much so that we are expecting that holograms that will be generated (that are seen) will also be felt.  Haptics is going that far that you will be able to even feel the holograms not only to see them.

There are companies that are making full body or torso haptic vests or hapticy suits.  What they will allow you to do is that they will immerse you in virtual reality so much so that you will be able to feel explosions and bullet impacts and whatnot on your body through those haptics. Now, if you have watched Black Mirror, there was an episode of Black Mirror in which something of similar nature was portrayed and it was quite graphic to see that and experience how haptics would play a role in experiencing virtual reality through the feelings of touch.

Ok, so we started with a question whether the harm from the virtual misconduct / virtual wrongdoing is real or not. Remember that we, as human beings, experience real world through our 5 senses. Our senses are: seeing (we see things), we hear things, we’re able to touch things, we’re able to smell and we’re able to taste.  Those 5 sensory experiences determine our reality.  When you have this virtual world where 3 out of 5 senses are already engaged (you’re able to see, you’re able to hear and you’re able to touch) so 3 of our the 5 senses are already engaged in our existing virtual world, then the question becomes how much would be the distinction between virtual and real.  This will be a philosophical question but in the near future we will be faced with this question because if, let’s say, in the virtual world all 5 senses are engaged. Then what is the difference between the virtual world and the real world?  How do we distinguish between the 2? That will become a philosophical question which will be relevant to us in our everyday lives as we will spend more and more time in the virtual world in virtual reality.  But for law, in the context of the harm, the question is if 3 of your 5 senses are experiencing some wrongdoing and it has a certain impact on your mind, could the harm that follows that wrongdoing, could that be real? Because if the harm is real and there is a real person being affected by that wrongdoing then there would be potential liability that may arise.

We will explore this further in terms of harm in our next lecture and we will continue our exploration towards the application of tort law principles to see whether it is possible to claim tort liability through wrongdoing in the virtual world.

Please stay tuned and we’ll come back with the next lecture talking about / exploring more about the harm whether being real or unreal.

Thank-you for watching.