– by Paolo di Fresco
The metaverse might be the new frontier of personal relationships. It offers the possibility of living in an immersive virtual dimension in which the user, through an avatar, leads his or her daily activities: buying and selling products and services, working, interacting, and participating in activities and events.
However, It is still an unexplored world: active users to date on Decentraland – one of the most popular metaverses – comes to just 8,000 (according to its creative director Sam Hamilton). However, because of its revolutionary power, it may represent a plausible future.
But how to regulate such an innovative, complex and decentralized reality in a way that provides maximum protection for its users?
The origin of Horizon and the first sexual assault complaint case
In his manifesto speech delivered at the 2017 Facebook Communities Summit, Mark Zuckerberg attributed the sociopolitical reversals of our time to the gradual disintegration of human communities and claimed that Facebook would solve the problem by creating a global virtual community to replace physical ones.
The idea of using artificial intelligence to develop a social engineering project on a global scale led in October 2021 to the creation of the metaverse: a simulated world that combines social media, augmented reality, virtual reality, and blockchain technology to create an interconnected online space that imitates real-world experiences.
About two months later, Meta (a new name assumed by Facebook) released a multiplayer platform, Horizon Worlds, which can be accessed through one’s Facebook account. The user, equipped with a special virtual reality visor, creates his own avatar that allows him to interact freely with others.
Despite Meta’s recommendations against bullying and abuse, relationships between users degenerated to the point that within a few months there was a first complaint of sexual harassment. A researcher named Nina Jane Patel alleged (in a post on Medium.com) that her avatar received insults, slurs, and obscene appreciation, which quickly escalated into outright gang violence committed by other avatars.
In her post, Patel wrote, among other things, that „virtual reality is designed so that the mind and body do not perceive the differentiation between digital and real experience. And in fact, my physiological and psychological response was as if that bad thing had happened in reality. The attack, one minute after entering Horizon, took me by surprise, I was terrified, and paralyzed. I couldn’t even get the security barrier in place. It was a real nightmare.“
After an initial attempt to downplay the incident, Meta has seen fit to prevent new incidents of harassment and violence by introducing a social distancing measure called „Personal Boundary.“ On Horizon Worlds and Horizon Venus, the worlds where shows and concerts are hosted, avatars will now have to respect the strict distance of one meter from each other, under penalty of suspension of the undisciplined user.
The issue of the applicability of penal law
As expected, the case caused a lot of discussion and raised to a question, which in turn presupposes many others: are criminal consequences against virtual harassers conceivable? And, if so, what might be the response of our criminal justice system?
However, before that, it is necessary to ask whether the action performed by an avatar can be blamed on its physical correspondent: namely, whether the avatar constitutes an expression of personal identity.
The concept of personal identity
In our legal system, there is a right to personal identity, which is closely related to the constitutional guarantee of full development of personality, both in individual form and in an associated way.
The concept of personal identity has been elaborated by the courts since the 1970s. In 1985, the Civil Supreme Court (Sec. I, 22.6.1985, No. 3769) stated that: „in the Italian legal system there subsists, to the extent that it is traced back to Article 2 of the Constitution and deducible, by analogy, of the discipline provided for the right to a name, the right to personal identity, as an interest legally deserving of protection not to see one’s intellectual, political, religious, ideological, professional, etc. heritage misrepresented or altered externally.“
Therefore, the notion of personal identity appears to be closely linked to the concepts of community and society: contexts in which each of us is entitled to the recognition of our uniqueness.
Personal identity in the metaverse
The metaverse is a social context in which corporeality is replaced by the avatar: that is, individual identity is expressed in the digital identity that allows the individual to participate in social life online. From this perspective, as part of Italian doctrine has argued, the avatar could represent a new form of expression of personal identity.
But can this correlation between avatar and personal identity suffice to hold the individual legally responsible for the actions performed by the electronic counterpart?
According to an interesting point of view, the answer would be affirmative. Our legal system, it is observed, would by now have outgrown the concept of personal liability as the responsibility of the natural person: the introduction of Legislative Decree 231/01 on the criminal liability of entities would prove this.
This analogy between legal person and avatar glosses, however, over the fact that the criminal liability of entities is not strictly criminal in nature but represents a form of mixed liability, in which administrative and more properly criminal profiles coexist.
In addition, the entity’s criminal liability arises from a regulatory-based organizational fault, which consists in the failure to prepare preventive protocols aimed at preventing the commission of crimes. The avatar’s violent actions, in contrast, are intentional on the part of the individual and certainly do not result from his or her negligent behavior.
The concept of materiality
In any case, the crucial issue is still another: the compatibility of the metaverse with the principle of materiality in penal law.
As is well known, in liberal-democratic inspired systems, there can be no crime if the criminal will is not materialized in external behavior. Ours is an objective criminal system: it assumes human behavior that is extrinsic in the external world and susceptible to sensory perception. It has been objected that „the external world“ would not only be the real world but „any world in which the real subject can exercise his or her right to personal identity and can explicate his or her relational and social identity.“
However, this is a dangerous sidestep that tends to overextend the area of criminal law’s application, the dematerialization of which is ill-reconciled with Article 25, Paragraph II of the Constitution, which, when speaking of „fact committed“ refers to a material modification of reality.
Should the need to contain the criminal law within its material framework then lead us to conclude that with one’s avatar, in the metaverse, one can perform any action, without any real legal repercussions?
Therefore, does criminal law have application possibilities in the metaverse?
Although the Supreme Court has found sexual assault without physical contact plausible (this is the case of someone who forces someone to send pictures of himself in hard poses under threat of posting the already received photos and videos on social networks: Cass. Pen., Sec. III, Judgment No. 17509/2018; Cass. Pen., Sec. III, Judgment No. 25266/2020), for the time being, it must be ruled out that the sexually connoted assault of an avatar integrates the extremes of the crime under Article 609 bis of the Criminal Code. Indeed, the sexual act does not take place in the real world and therefore escapes the criminal law’s grip.
It is, however, possible to assume the existence of those offenses in which the victim’s emotions and perceptions play a decisive role; for example, persecutory acts under Article 612 bis of the Criminal Code (so-called stalking), whose legal asset is represented by the psychological integrity of the offended person.
As is well known, the rule incriminates those who, with repeated conduct, threaten or harass someone in such a way as to cause an enduring and serious state of anxiety or fear, or in such a way as to create a well-founded fear for one’s own safety or that of a close relative or person linked to him or her by a relationship of affection or to force the same to alter his or her living habits.
Let us now imagine that the victim’s life habits include regular attendance at the metaverse (a place where it is already possible to shop or attend courses and classes): if, due to threats and harassment, the offended person were forced to give up his usual
interaction with the virtual society, if the harassment against the avatar procured a severe state of anxiety to his physical counterpart, then the crime of stalking could legitimately be established. Ultimately, if the harassment against the avatar overstepped the boundary between virtuality and reality and compromised the moral freedom of a real person by forcing him or her to give up manifesting his or her personal identity in that context), then the crime of stalking, exactly as it is configured today, would be triggered.
Assumptions about the future development of criminal law in the metaverse
Looking to the near future, it is not unlikely to hypothesize an attempt to create a kind of global electronic jurisdiction that would identify the avatar rather than the physical person as its center of interest.
However, the idea of a global legal system raises serious concerns: on the one hand, it is based on the assumption of a two-way correspondence between the physical person and avatar when, in reality, the avatars of each individual are potentially unlimited (as many as there are or will be metaverses); on the other hand, it does not seem that today’s transnational institutions have the strength to elaborate global visions of the community equal to those proposed by the network giants. This new cyber habitat will, therefore, develop beyond the reach of traditional powers: will it be true glory? To posterity the arduous judgment.