The tech metaverse has exploded in a meteoric fashion and lawyers are already starting to follow the phenomenon more closely. This is the case of Anne Cousin, associate attorney at the Herald, who accepted this interview. For her, in order to frame practices in the metaverse, modular levers already exist.
Were you interested in law related to new technologies from the start?
Yes, I started with an interest in IT and digital law in general. In another life, I could have become an engineer because this field fascinates me. I really like to defend these issues and all the legal inferences that have been adapted to technology in general.
Can we consider that the legislature is still lagging behind in technological development? How to realize the interruption of metavirs?
The legislature is never asked to be ahead and it is not up to the lawyers to invent the technology of tomorrow. Rather, their role is to support players in the sector towards better practices. It is not the law that is left behind but the human being who needs time to understand all the societal challenges of technology. Countless legal symbols on my desk attest that law is an incredible achievement. It is more a matter of knowing which law to apply than a matter of legal vacuum!
As far as metaverses are concerned, we are in the beginning and there are a lot of issues, especially within the framework of the market and property rights. In the market first, the question will be how our competition law will be applied. This is the first question to ask: Will we have 50 or just two platforms dominating the metaverse market? Will Meta and Microsoft be the only dominant players?
It all depends on how these big platforms will define practices in their metaverse. For example, will they force users to use a certain cryptocurrency or will they leave the choice?
These questions are well known in competition law and the French competition authority has already conducted fairly detailed ideas for several years about the rules that should be applied to better regulate digital markets. Today, the European Commission has also equipped itself with its own tool to fight the monopolistic situation of these platforms thanks to the future DMA and DSA (Digital Markets Act and Digital Services Act).
In your opinion, is the law able to keep pace with the rapid development of new technologies?
Yes, we have the necessary tools but we may not be competent enough to be able to apply these rules quickly, given regional characteristics; This will require the countries of the European Union to become more reconciled.
Therefore, at the end of the chain, efficiency fails, but also simply because justice resources are generally unavailable. The experts available to enforce these rules are still not enough.
Any good lawyer qualifies the available law with their own analysis network. I firmly believe in the softness of the law. For example, the Law of July 29, 1981 on the Press Law works very well: there have been some changes over the years but this provision is now applied to the issue of Internet defamation.
We have French and European legal tools available to combat violations that can occur according to the technical developments of the platforms. But it’s again an efficiency concern: There are many powerful players who don’t make GDPR implementation a priority, and that’s an understatement. European CNILs should announce more serious sanctions. They have been very shy about this for a very long time.
Rather than accusing the law of delaying, it is better to demand more effective punishment. Political and societal will is needed, a kind of global awareness of the dangers these monopolies entail. Our courts today are making decisions that are different than they were twenty years ago, precisely because society’s vision is changing. Is this company ready today to convict Meta or others in case of non-compliance with applicable rules?
Is capturing and processing personal data in the metaverse more dangerous for users?
Yes, the metaverse is more dangerous because it includes more sensitive data. An avatar represented in this virtual world will look like you and capture even the tiniest behavioral data. Do we need to remind you that Facebook has developed patents to detect consumers’ facial features to better predict their purchasing behavior? The metaverse is likely to amplify the knowledge that a handful of platforms have about our behaviors.
Again, we have the legal tools to regulate these practices but not enough relays to enforce them. In 2000, we got a decision by a judge in the Paris Grand Court for Yahoo to stop selling Nazi stuff on its platform. But due to the lack of coordination of the judicial policies of the respective countries, this decision was not implemented in the United States.
Isn’t the fact that these major platforms are more accurately called “gatekeepers” in the new European Commission texts (DMA and DSA) a sign of significant progress on this topic? This has the advantage of clearly setting goals to avoid distractions, don’t you think?
Where the commission changed the deal in terms of effectiveness is the fact that it provided relays responsible for verifying compliance with the stipulated rules.
Under the Digital Services Act, gatekeepers must provide entities with a certain amount of information about their systemic risks, audit reports as well as provide measures aimed at mitigating these risks. This is the first time we’ve gone a long way to ensuring efficacy.
What legal projects related to the metaverse do you see them emerging?
The main unknown regarding the development of the metaverse remains the avatar because lawyers question whether it should have its own personality or whether it remains an extension of the human being. May he defame, abuse, harass, or even steal? These same questions were actually asked a few years ago about robotics and artificial intelligence. Under French law today, these technological or digital entities are not viewed as people in their own right, but rather as tools that can make it possible to harm individuals.
There is also the topic of NFTs (non-fungible tokens), and the issue of adapting existing intellectual property rights also arises. If we want to protect brands in the metaverse, we need to modify existing repositories.
Under copyright this time, in order for an artist to design an example adidas NFT sneaker, he must acquire the rights of its owner. If this artist wishes to do like Andy Warhol a famous trademark remake, he must obtain permission to reproduce as in the real world. This is a somewhat old debate between freedom of creativity and copyright. The author of a secondary work must always obtain approval for the primary work.
Do you see the emergence of specialized lawyers on Metaverse?
I’m not sure we’ll see any lawyers that specialize in the metaverse, but it’s clear that digital lawyers are already working on it. It’s a fairly natural extension of what we do on a daily basis.
For my part, I specialize in e-commerce and support many companies that want to turn their sales online. We help them comply with “Platform to Business” regulations, consumer law, the Digital Services Act… a complete regulatory law that is also intended to control the metaverse.
We’ve had questions of a similar magnitude when it comes to peer-to-peer. Does the fact that a music file is shared between users illegally leads to copying subject to the owner’s license? In the face of the rapid development of technology, a lawyer must constantly rethink the concepts with which he works every day.