The legal framework surrounding Virtual Reality and Augmented Reality
The most exciting area of content in the 21st century is Virtual Reality (VR) and Augmented Reality (AR). It’s incredibly immersive and the possibilities are endless. Virtual reality and Augmented reality are rapidly shaping our physical world to be closer to the digital world. Where such technology opens avenues for businesses, it also brings about countless legal issues. V/R and A/R technology are not only restricted for the gaming world but it appears that it has encompassed the work and social life of people. For us, on top of being entertaining, the new technology raises a host of legal issues. As opposed to the real world, for which the legal frameworks were initially formed, the virtual world is not a universe, wherein the user enters involuntarily. The user by wearing a VR headset and AR glasses, voluntarily consent to enter a virtual or semi-virtual universe, which is not bound to follow the set of laws that applies in the real world. Firstly, because the AR or VR is not real and the users voluntarily enter the universe, users have to adhere to the rules and terms drafted by the owners and operators of the virtual world rather than being scrutinized by the conventional civil protections provided in the real world. This means that the legal protections that a person enjoyed in the real world have been contracted away after stepping into the virtual realm. For instance, the liability for a VR system that made the user walk into a pole or accidentally hitting someone because the system made them think it’s a zombie. The experience in VR is based on an artificial environment, it’s a “walled garden” which exonerates the legal liability of the makers of AR and VR systems. Secondly, it also raised yet another interesting debate regarding the collection of data. VR system operates by gathering and assembling a huge amount of data about users’ activities. As the technology expands it will start encompassing data about the transaction, conversation and intimate acts the user could participate in the virtual world. In essence, as the development grows, VR and AR would be able to create an enormous detail audit trail of each user inside of the virtual world. This issue entails the privacy policies and data collection; big tech firms are already collecting the obvious things, for instance, head movements and eye movements. However, with virtual reality and augmented reality, they could even collect data regarding your responses to certain objects. Could these VR and AR system could be allowed to collect more subtle information, for instance, your heart rate, body temperature, and sweat level. Some of these questions are still unattended.
The VR and AR system is designed to imitate the real world as closely as possible. The technology makes the stimulation as accurate as of the real world. The line between real and virtual becomes blurrier for the users, and in some circumstances, the boundary doesn’t exist at all. As both worlds converge, the issues relating to intellectual property arise. Certainly, the underline code of the game would be owned by the platform because they made the code; however, there are also other subtle things around the code. The elements like touching a leaf, or smelling a flower, they are also coded but are they copyrightable? Intellectual property rights are the most significant in virtual reality. The intellectual property rights in VR two-folded.[1] Firstly, the real-world IP rights in the virtual world and the virtual IP rights in the real world. For instance, for the first classification, KFC has trademarks over its rand throughout the world. However, what if someone tries to depict KFC burger or the restaurant in the virtual environment. Does the trademark extend to cover the virtual world? For the second classification, consider an application that geotags any building. When the building is see through a phone, the application gives information regarding its height and number of residents, etc. Who would have ownership of the rights of the information virtually displayed on a physical object? Another legal issue arises with respect to the concept of avatar. The avatar is a digital self of any user. A user spends time to create a digital version of himself/herself. Does the avatar be owned by you or the platform owns it? What if one avatar insults another user’s avatar in the virtual world? Does that give rise to a suit for defamation? Moreover, what if you create an avatar that appears to be nude or that it supports a fascists regime of Nazi. Although the game platform can prevent that from happening; however, people looking at your avatar have the option to select if they want to virtually experience your avatar in the objectionable state. In the real-world, we do not require other’s permission to change our outlook; however, in a virtual environment, the consent might require. This capability can backfire as the people then can have the power to manipulate your digital appearance. For you, nothing would be changed; however, other users are now willingly experiencing you differently. If they make you appear nude in their own virtual reality and they share it with their friends, your reputation could be in danger. Your digital self in the virtual world would have no reputation.
The purpose of this essay is to dive deeper into the legal complication that could arise through augmented reality and virtual reality. People would be using these technologies to kill and die, they might inflict injuries or harm others. The technology could be used to threaten or defraud someone. Firstly, the paper provides an introduction to the emergence of virtual and augmented reality and the people's interaction with those technologies. Secondly, the paper would highlight how the law would deal with street crimes occurring in virtual reality. For instance, certain behavior which includes indecent exposure and harmful visuals. Thirdly, the paper would discuss tort lawsuits that could originate by users against other users or against the VR or AR operators. Lastly, we move towards concluding the paper by giving some ideas to regulate AR technologies as they evolve.
Augmented reality differs from virtual reality, augmented reality creates a digital world through your smartphone screen. AR is generally interoperable; however, virtual reality is not. To experience virtual reality, the user needs to own a proprietary headset. The main players in the market are the Oculus, Rift, and PlayStation, etc. Each platform has its own games and requires different hardware to work. Currently, virtual reality or augmented reality has been used in games. Although it is not restricted to just games even it shouldn’t be termed as “just” a gaming platform.[2] The gaming industry itself is enormous which is growing faster than other forms of media. Moreover, virtual reality changes how we react to games. For instance, kids experiencing a violent video game through virtual reality would have higher physiological arousals and violent thoughts than someone who is experiencing it on a 2D screen. However, is it is not just restricted to games. Google’s phone-based virtual reality application, Cardboard, permitted people to virtually visit a Syrian refugee camp.[3] Similarly, other programs like Tiltbrush allows the artist to make art in 3D.[4] Moreover, the technology doesn’t only stop there, it expands to provide us intimate relationships. Virtual sex and realistic interactive pornography with live participants or software constructed avatars.[5] VR and AR technology changes the way we interact with one another. Augmented reality technology has the potential to distract the user from the real world. People already get distracted while using their cellphones, traffic accidents have been rising due to the use of a cellphone while driving. With AR, the distraction could be doubled because our attention would be split between reality and the virtual world; thereby, endangering oneself in the real world. There have been instances whereby people have walked off a cliff while playing Pokémon Go. Similarly, the VR gives us experience as if we are feeling it in reality. Individuals in a virtual reality physiologically reacted in the same way as if the actions were taken place in reality. People who experience being slapped in the virtual reality responded with the exact heart rate levels as if they were getting slapped in the real world. Although the physical effect would be different, people would not be experiencing any physical pain or bruise but they could experience mental stress or agony. The feelings of a zombie eating you in VR could have physical consequences in real life. You can be scared to death or get into a mental trauma. Mental stress could give rise to a tort in real life but could this mental stress that is caused by stimulation through VR equalize the mental stress caused in real life?
The criminal activities which are conducted in real life have negative consequences and it could lead to penalties. Let’s consider a crime that is more visual than aural. In a VR environment, you witness an indecent exposure, an avatar comes in front of view who is completely naked. He is masturbating or is having sex with someone else and the scenario keeps popping up in front of you even when you try to take away. In the real-world, public nudity or indecent act would have legal consequences. However, public nudity in VR or AR becomes much more difficult to deal with. Another issue that involves a serious injury to an individual is much harder to ignore. People who have epilepsy could have seizures because of strobe lighting. One individual had already experienced an epileptic seizure during interaction in virtual reality. Although these seizures are not fatal they do include a chance of injury. If in a real-world someone pulls out a prank by making a strobe effect and putting someone having epilepsy in danger could lead up to torturous or criminal liability. Would the same law be followed if someone does that in VR, as we previously discussed that people physiologically feel the same way in VR as if it was happening in real life? Another example of a hack that could make change your VR camera positioning information and allow you to think that you are in a bedroom while in reality, you are about to fall from stairs; or infiltration by someone into the system to deliberately sends another user into a wall or off the cliff? If this doesn’t lead to criminal liability, then what about Virtual groping? Jordan Belamire encountered the incident of virtual groping while playing a multiplayer zombie shooter. Another player in the game came up to her and started to make gestures which could be termed as virtual groping. She stated that “BigBro442’s approached my body, and started to virtually rub my chest…. Even when I turned away from him, he chased me around, making grabbing and pinching motions near my chest. Emboldened, he even shoved his hand toward my virtual crotch and began rubbing…”.[6] Although, it is not real and it lacked physical contact, but it felt realistic to Belamire. She describes that diving off a virtual reality cliff triggers fear in you in real life. Virtual groping, according to her, “felt just as real”.[7] The current law regime would not criminalize virtual groping because it doesn’t come under sexual battery as there is no physical contact. Moreover, another example in AR crimes that could not be technologically avoided is intentional or recklessly startling another user which could interfere with their physical world tasks and put them in danger. For example, if I know that my friend is driving with a set of AR and I know that he is afraid of spiders. I appear in his field of vision with an avatar that appears as a spider and try to startle my friend. However, that ends up in an accident for my friend although my purpose was just to pull out a prank. In real life, it would be a crime because I intentionally put my friend in fear of bodily harm. There are a lot of questions that have appeared due to this emerging technology.
After the number of possible legal issues that could give rise to criminal liability because of AR and VR, there is numerous torts claim that can arise as well. The claims would arise due to personal injuries or injuries caused to others while using VR and AR technologies. Mostly VR needs HMD does operate which makes the user to not see the real world. If the user attempts to walk, it is a possibility that they could fell from stairs. In AR technology, where there is no use HMD, people could still get into several car accidents. VR experience can also incite fear in the user’s mind. There have been instances where the use of VR has amounted to nausea when the visuals are not in conjecture with the bodily movement. Without a doubt, the suits of negligence and product liability would follow for VR and AR companies. Moreover, this will also include claims by third parties against the VR companies. The idea is that the third parties are affected by the intrusive conduct of the user while using VR and AR technologies, for instance, trespassing. There have been instances where third parties have indulged into accidents while saving distracted users. This claim would be dealt with under the theories of negligence. Whether the VR companies could reasonably foresee the possibility of consequences of its user’s actions? Lastly, technology gives rise to claims by users against other users occurring in the virtual world. The crimes that could be committed in the real world can happen in the virtual world. Theft is one of the most reported and recurring problems. The virtual items that could be exchanged or traded have been robbed by other users? It gives rise to tort claims. Moreover, defaming a VR avatar could give rise to defamation claims as it injures the reputation of your digital self. The avatar engages in business and has a social life in the virtual world, if it is defamed, it should be a tort claim regardless of the fact that avatar is pseudonymous.
While the advancement in technologies gives rise to challenges in the legal realm, it becomes significant that there need to be certain regulations to control so that the law should develop at the same pace as technological advances. One of the ways to control AR and VR right now is through soft law mechanisms. Adopting instruments that do not directly impose duties but it provides a code of conduct and standards. Before the adoption of hard law requirements such as legislation of statute law, it’s better to formulate certain guidelines and codes of conduct for the AR and VR companies. For multiple reasons, the crimes, torts and other related problems would emerge due to VR due to the absence of a legal system. Because it is virtual reality and it isn’t real. There should rather be in-game mechanisms to deal with the problems occurring in the VR world because the police departments or courts would argue that it’s a private matter between the user and the VR provider. The absence of any law may not be turned out to be bad. Although the legislatures and courts try to intervene to provide solutions to the problems occurring due to new technologies but most of the time the technologies end up facing over-regulation which stifle innovation. The best way to nurture a new technology is to leave it on its own as a whole. We have witnessed in the example of the internet, whereby, companies due to the fear of government regulations were not able to innovate. AR and VR technologies are rather new and they need to grow culturally and technologically. However, the problems that the essay has discussed are real and in the absence of legal authority, VR and AR communities should come up with their own norms that conform to the community standards. In this virtual world, the operators could make a dispute resolution mechanism, whereby the people can refer to their disputes virtually. Maybe the creation of a virtual courtroom, that decides defamation cases arising in the virtual world. However, it is hard to do the same when the harm is inflicted in the real world through the use of VR and AR. No wonder that certain issues would need to be dealt with existing rules and in some circumstances the modification of the existing rules.
[1] Tam Harbert, ‘The Legal Hazards Of Virtual Reality And Augmented Reality Apps’ (IEEE Spectrum: Technology, Engineering, and Science News, 2018) <https://spectrum.ieee.org/at-work/innovation/the-legal-hazards-of-virtual-reality-and-augmented-reality-apps> accessed 23 December 2019.
[2] David Hopee, ‘A Deep Dive: Law, Virtual Reality And Augmented Reality — Gamma Law’ (Gamma Law, 2017) <https://gammalaw.com/a-deep-dive-law-virtual-reality-and-augmented-reality-2/> accessed 23 December 2019.
[3] Marcus Wohlson, Google Cardboard’s New York Times Experiment Just Hooked a Generation on
VR, WIRED (2015), https://www.wired.com/2015/11/google-cardboards-new-yorktimes-experiment-just-hooked-a-generation-on-vr/
[4] Frank Rose, The Making of Virtually Real Art with Google’s Tilt Brush, N.Y. TIMES (2017),
[5] Alyson Krueger, Virtual Reality Gets Naughty, N.Y. TIMES (2017), https://www.nytimes.com/2017/10/28/style/virtual-reality-porn.html
[6] Jordan Belamire, My First Virtual Reality Groping, MEDIUM:ATHENA TALKS (Oct. 20, 2016),
https://medium.com/athena-talks/my-first-virtual-reality-sexual-assault-2330410b62ee#.swe1c0pgr
[https://perma.cc/3D25-3X2L].
[7] ibid