VR, AR Pose Real-World Crime, Tort Problems, Say Professors, Tech Lawyers

Virtual reality and augmented reality generate legal questions for courts, companies and users but may not require a fundamental rethinking of existing legal doctrines, said law professors and tech lawyers in articles and interviews. AR and VR implicate a broad range of laws, including criminal and tort, and raise questions about how to enforce them in the virtual world, they said. There are no definitive answers, "but the very existence of VR and AR poses the questions in new ways" that may go to the assumptions law makes about freedom and harm in the physical and virtual world, law professors Mark Lemley and Eugene Volokh wrote in a March 17 working paper.

The issues came to the forefront with the success of Pokémon Go, said Lemley, of Stanford Law School, and Volokh, of the UCLA School of Law. The game uses augmented reality, which they described as adding visible digital content to a person's perception of the real world. Beyond AR is VR, which "replaces the real world altogether," they said. Both technologies will create new legal questions, the academics said. Virtual interactions will take place through devices and networks that are privately owned and operated and that may be subject to contract terms and conditions users are unlikely to see but that will significantly limit their rights, they wrote. AR and VR "can cast doubt on legal doctrines that tend to distinguish between physical contact and physical danger and things that are 'just' audio and visual communication," the paper said.

VR and AR could cause virtual street crimes, the academics said, such as screaming in a VR public place, indecent exposure and "virtual groping." These may not be covered by criminal laws. VR and AR also may implicate tort law, the paper said: Disturbing the peace, while possibly not a crime, could be recharacterized as nuisance, they said. "We doubt that people will often sue each other for most VR or AR behavior."

If, in a virtual reality game, someone vented pent-up rage at an avatar representing her boss, there would be no criminal or tort liability as long as the violent intentions don't cross into the real world, said attorneys Roy Keidar and Nimrod Vromen, and intern Ahuva Goldstand of Yigal Arnon Law Firm (Tel Aviv) in a Feb. 17 post on the American Bar Association Law Technology Today website. If an action carried out in the virtual world had real, although unintentional, implications in the physical world, and were carried out with AR rather than VR, would the exemption from liability still hold? "The question is no longer a theoretical one," Keidar said. He cited issues with Pokéman Go.

One of the keys is to explore the actual harm done, if any, in the real world when one's avatar is assaulted in in a virtual setting, Lowenstein Sandler (New York) digital advertising, media and entertainment attorney Matthew Savare emailed. That seems to be central to establishing a real-world claim for virtual-world torts, he said. Some theorize a person's avatar can be so interconnected with his or her actual person that the avatar is regarded as a part or extension of the real person, he said.

Complexities "may ultimately lead to the conclusion that our current legal paradigms, be it civil or criminal, are ill-equipped at their core to deal with the new world order that will reign inside the virtual medium," Keidar wrote. "We may find ourselves legislating from scratch the do's and don'ts of that other world." That doesn't mean two different sets of laws are needed, Keidar told us. The same principles that apply in the real world would apply in the virtual or augmented, he said; sexual harassment should be forbidden, and trespassing is illegal. "Enforcement is different given the nature of the platform," Keidar emailed. "I'd look for more regulatory guidelines that the gaming industry could implement at the early stage of the product design so such torts could be avoided/prevented from the very beginning." Given the trend to increased protection online, such as the growing number of state laws outlawing cyberbullying, it's likely courts will extend physical crimes to the virtual world, especially as VR becomes more prevalent, Savare told us.