Posted on February 4th. 2022 at 7:00 amUpdated March 18, 2022 at 5:59 PM.
The metaverse is on everyone’s lips: those of investors, entrepreneurs, brands and even the most avant-garde users… But will the laws in augmented reality worlds be the same in the real world or on Web 2.0? While the Digital Services Act (DSA) and the Digital Market Act (DMA) should come into force soon — with the goal of imposing new obligations on platforms, while maintaining the principle of their limited liability for illegal content and by combating their abuses on the market — legal questions arise. Maître Anne Cousin, a lawyer who specializes in digital law, is trying to answer them.
Les Echos START: In your opinion, what are the legal risks for individuals in the metaverse(s)?
I’m my cousin: The first risk is the increasing volume of sensitive personal data that platforms hold about their users – whether in the context of their work or private lives. For example, Meta (ex-Facebook) wants to develop processes for detecting the slightest facial expression via artificial intelligence (AI) or create avatars that reproduce a line by a user’s line, a virtual double … This gives an idea of the extent of the phenomenon!
In France, the CNIL, a watchdog on digital freedoms, has long warned of the dangers of using biometric data and considers that, unless there is a duly justified derogation, it should remain under the control of the natural person to whom it belongs. Is this possible in metaverse? The question remains open…
Are there really scripts protecting users of these augmented reality worlds?
I believe that the European Regulation on the Protection of Personal Data (GDPR) 2018 will apply. Thus, the basic rules that you specify will also apply: the designation of the data controller, the supervision of the transfer of data outside Europe or the information of people for the purposes of their data collection and reuse.
But, the challenge will be to maintain this level of security in a context far more complex than what we know today, and tomorrow, in the metaverse(s).
Who will be in charge of the metaverse(s): the actual person wearing the VR headset or the avatar?
The answer cannot be universal. If an avatar insults a colleague during a virtual business meeting, it is the “real” person who will be held responsible for such violations of freedom of expression. For example, in real life the employer can fire her.
Here, other questions also arise: Can the theft be committed there? And why not… The Court of Cassation has long agreed that it can relate to intangible property. Could a murder be committed there? Probably not, due to the lack of legal existence of the avatar. Can an avatar harass another avatar? Rather yes, if through him, the effects on the individual are of flesh and blood the same. It is she who will eventually be a victim of another normal person.
How do we protect “property” in this new universe?
Intellectual property rights must be respected in the metaverse as elsewhere. The creation of NFT tokens, which are non-fungible tokens, inspired by intellectual creations without the permission of the rights holder, is likely to be a forgery.
However, this is supposed to show the originality of the original work. It is also essential that the “creator” of the NFT cannot claim any legal copyright exception such as parodies. In other words, he can’t stop him. One can then imagine that the metaverse platform that allows the sale of NFTs can also take responsibility for it. From a legal point of view, the DSA will not prevent this, quite the contrary.
For their part, companies that market their products in a virtual shopping mall should have obtained from the creators they hire, all the rights necessary to reproduce them in this universe. It is possible that virtual malls of the future will impose very unbalanced terms on sellers and pay increasingly high royalties.
Show risk: seeing a few platforms do (more) commerce online. Legal tools exist (anti-competition agreements, abuse of a dominant position, unbalanced contractual clauses, etc.), and even the latter (DMA) but the effectiveness of sanctions raises questions.
And what about real estate in virtual reality?
Here again, for those who invest, other questions appear and the answers are only partial … Will it be necessary to take advantage of sales in such a virtual mall, to justify an address in New York and thus buy a virtual apartment with cryptocurrency stored in a subsidiary of Meta? Will we be able, once again, to sell absolutely everything: a brick, a wall, a knob, a corridor of a house, or a rod of virtual buildings?
Finally, will new laws be needed to regulate this new world?
This new world will certainly lead us to a renewal of legal thinking, but the foundations are there. Moreover, digital law is used to evolve rather than revolutionize. Let us not lose sight of the fact that the DSA complies with the law of June 21, 2004, which nearly twenty years ago laid the foundations for the liability of Internet operators. invalid law? No, but adaptations will be necessary to take account of the new challenges.