March 22, 2022

Authors: Kevin Stenner and Mihai Beschea

Recently, the avatar of a female beta tester on Meta’s virtual reality platform, Horizon World, was groped by a stranger.[¹]  Sadly, misogyny towards women on the internet is nothing new, but this recent incident raises the question of if our current sexual assault laws (criminal and civil) are sufficient to cover and protect users of the metaverse from similar situations.

Horizon World and the Metaverse

Horizon World is Meta’s (aka Facebook) first attempt at an expansive, immersive, and multiuser virtual reality world. Users create a character, commonly referred to as an avatar, and then explore and engage with the world and with other users through the use of a virtual reality headset. This was the context in which the female user’s avatar was groped.

Although many may shrug this off by saying, “what’s the big deal, it’s virtual, it’s a game,” we staunchly disagree with this sentiment. With the line between the virtual and physical worlds became blurred at a rapid rate, we need to ensure that our laws can meet the challenges of operating in a virtual world.

The Blurring of Lines

The end goal of virtual reality is to create a virtual world that is so immersive that our mind interprets it as being real. When the goal of the metaverse is layered onto this, with that goal being to create a virtual environment that we can interact with in the same way that we interact with the physical world, it is becoming increasing more difficult to determine where the physical world ends and the virtual world begins.

If I am in the metaverse and interacting with that world through my avatar, that avatar is an extension of me. One may argue that your avatar is not actually you because it has no physical body and only exists through computer code, but again, I disagree. As discussed above, the purpose of the metaverse is to create a virtual environment that is an extension of the physical world. So, if the metaverse is an extension of the physical world, any sexual assault in that virtual world needs to be treated as just that – a sexual offence.

Another important factor here is that the metaverse is supposed to imitate daily life. Examples of uses include the creation of virtual offices, so that people can attend work and interact with colleagues in a virtual but highly immersive way, without having to leave the comfort of their home. It is not an online gaming platform where the purpose is to kill opposing players. The purpose of the metaverse is to provide an extension to real life. Accordingly, I have a reasonable expectation to the security of my virtual avatar in the metaverse – this differs from when I sign onto an online shooting game that I know is not an extension of real life and has a violent purpose.

What Does the Law Say About Sexual Assault in the Metaverse?

In Canada, the test for the civil claim of sexual battery is, on a balance of probabilities: i) was the victim intentionally touched in a sexual manner;  and ii) was that interference “harmful” or “offensive.” Looking at this test, I think it is clear that unwanted groping or unwanted sexual conduct, whether in the physical or virtual world, is harmful and offensive. As such, the second part of the test is satisfied.

The question then becomes if the first part of the test is satisfied. Is a court willing to find that the virtual touching of an avatar constitutes the victim being touched in a sexual manner? In our Horizon World groping example, the victim was intentionally groped virtually, but was the victim ‘touched,’ as defined in the legal sense of word, to constitute civil sexual assault?

In terms of the criminal offence of sexual assault in Canada, this is a broad offence and would generally apply to any physical application of force that is not consensual and is done in circumstances of a sexual nature. As with the tort of sexual battery, the finding of a criminal offence in this example will turn on how a court interprets the term ‘physical’ and if a court is willing to accept that the physical application of force includes virtual touching.

The Takeaway

It will be interesting to see how courts wrestle with the issue of virtual touching. With the blurring of the lines between the virtual and physical world, it is time for our laws to be updated to so that our avatars in the metaverse and our physical selves are protected by the same laws. If a victim is groped in the metaverse, in a virtual world that is an extension of the physical one and a world that is supposed to trick our brains into thinking it is real, that victim has suffered a sexual offence and the perpetrator should be dealt with as if the groping occurred in the physical world.

Applying Current Laws to the Metaverse

Many questions arise out of this scenario, but it is clear that it will be difficult to apply our current laws to the metaverse. As technology develops and the distinction between virtual and real becomes more challenging to develop, it will be increasingly important to address these legal questions. Other interesting questions that arise from the above scenario, include:

• How do we punish the perpetrator of the groping? Should punishment be limited only to the user’s avatar – by suspending their account or placing the user in some sort of virtual prison? Perhaps a financial consequence in the metaverse might be more significant than a traditional criminal one for crime occurring in the virtual space.
• Should Horizon seek to restrict and outright ban this behavior? If our goal is user safety, should the program code behind Horizon block sexual assaults? We recognize that we are bordering on the realm of creating a dystopia, but the virtual world will have to grapple with issues of free will versus user safety.
• What is the role of anonymity in the metaverse? Is the user who perpetrated the grope, a sexual assault, going to be identified and further monitored? This type of behavior is disturbing, we should consider how quickly users moved to this incident – the grope occurred in beta testing. Should there be some consequence in the physical world? What if the sexual assault was more serious – for instance an assault against an underage user?
• What kind of sexual interactions are permitted in the virtual world? As a society, we are moving more and more towards online and now virtual experiences. Should the metaverse facilitate, permit, and regulate sexual activity between consenting adults?

The groping incident explored above opens pandora’s box regarding laws, sex, and violence in the metaverse. It should be no surprise we are discussing this; as a society we have been grappling with these issues as they apply to social media, gaming, and the use of the internet. As the experience becomes more immersive in the metaverse, we’ll need to consider this in more depth. As the metaverse gets closer to imitating the physical world, damages (psychological, emotional, and even physical) become evermore real. The metaverse is coming faster than we think and we need to ensure our laws are ready for it.

If you have any legal questions about crypto currency, the metaverse, or other virtual/cyber laws, contact our team of commercial lawyers.

[1] https://www.businessinsider.com/meta-investigated-woman-claims-she-was-groped-in-metas-metaverse-2021-12