Thursday, January 20, 2011

Criminal law & cyberfantasy

(Delighted to welcome back alumna Audrey Guinchard, who contributes this guest post)

Is virtual reality a fantasy outside the reach of criminal law?
This provocative question about the potential regulation of virtual worlds such as Second Life attracts divergent answers:
► Some consider it an anathema for law to regulate virtual worlds. Their regulation belongs to their creators and owners, not to Governments.
► Others argue that the arm of the law could well extend to virtual words, at least to those that are not games, where participants do not have to fulfil specific and pre-established objectives.
Indeed, some problematic behaviours do sometimes fit in the definition of offences. Fraud is an easy example, and some incidents are reported about people abusing the trust or misrepresenting facts in order to appropriate property or currency that can be exchanged into real-life money, mainly US dollars.
Nonetheless, other offences, like theft, remain difficult to apply to virtual worlds.
Should we then reform the law? Are we putting too much emphasis on something that is hardly relevant for the ordinary citizen?
Given the development of a strong economy in virtual worlds, with, for example, owners and users earning a living out of Second Life, we may want to consider these questions a bit more seriously rather than dismiss it per se -- as I do in my most recent article, "Crime in Virtual Worlds: The Limits of Criminal Law", published last year in the International Review of Law, Computers, and Technology.
Regarding offences against the person and public order, the outlook is different. Unless behaviours spill into the physical world, problems will consist of words and images exchanged and produced in the virtual world between avatars that may never reveal any details of a real-life person. As such, it is difficult to link the images, still or moving, to the physical world, whereas criminal law tends to assume a link between the representation of the person in words and images and the physicality of the world.
And yet, there are evolutions in the law that show an increasing awareness and desire to tackle those issues.
The United Kingdom, for example, decided in the Coroners and Justice Act 2009 to create an offence for possessing non-photographic images of child pornography. Could the offence define as including “the image of an imaginary child” (section 65 (8)) reach the fantasy world of Second Life?
It is difficult to predict how the law enforcement will view the suitability (or not) of the new offence to behaviours in virtual worlds. Moreover, the offence raises important questions of boundaries between fantasy and the real world, questions hardly touched upon in the course of the parliamentary debates. Actually, the debates were non-existent, had it not been for the concerns raised by Parliament's Joint Committee for Human Rights -- concerns that remained unanswered by Government.
Hence, the need for further studies to understand the power of images on oneself, so as to articulate possible responses by criminal law, if responses are needed.

1 comment:

Christian said...

Although I agree that there are some instances where "the arm of the law" can extend into the virtual world (i.e. fraud, child pornography), I disagree that it should apply to regulate virtual worlds like Second Life any more than it already does. Virtual reality just isn't the same as reality. The purpose of these virtual realms is to escape reality and to somewhat live vicariously through these avatars that they've created. I'm not entirely sure how owners and users earn a living from Second Life, and I'm a bit naive to just how "strong" the economy of this virtual world is, but in my perspective, I wouldn't treat it any different from The Sims, or any of today's popular online games.