Our paper, The Metaverse beyond the Internet, (2023) Law, Innovation and Technology, discusses some of the issues and policy choices the law will have to grapple with in the more immersive emerging Metaverse that will lead to the convergence of virtually enhanced physical reality and physically persistent virtual space. Many potential new problems will emerge while some existing issues will be exacerbated. This blogpost outlines three of the issues discussed in the paper.

One problem that has exercised lawmakers around the world is child pornography and exploitation. The Metaverse is likely to open up new opportunities for sexual predators. Just to take an example, should we expand the concept of ‘grooming’ to activities in the online space even if there is no attempt to meet the child in the real world?

In a BBC news investigation, a researcher posing as a 13-year-old girl witnessed grooming, sexual material, racist insults and a rape threat via a Metaverse app. It was reported that through the app the researcher visited VR rooms where avatars were simulating sex and she was approached by numerous adult men to do the same. A safety campaigner that the BBC spoke to said that children told him they were groomed on the platform and forced to take part in virtual sex.

Presently, such online activities that are not intended to lead to real-world meetings do not fall within the legal definition of ‘grooming’. The question is whether they should, given that the sort of activity described in the BBC report objectifies children and increases the likelihood of physical meetings in future. In addition, it is very likely that users will have a strong sense of identity with their avatars and such online acts may lead to a negative psychological impact. At a minimum, such interactions should constitute prohibited communications and dealt with accordingly.

Another online harm that can be magnified in a Metaversal world is disinformation and misinformation that has been of concern globally, particularly in relation to public health and the democratic process. Indeed, the immersive experience of the Metaverse and its application to not just entertainment and leisure but also the replication of professional workspaces means that this new platform could very well be a hotbed for hate speech, misinformation, falsehoods and other harmful social media trends. It is therefore unsurprising that even some liberal democracies have taken steps to introduce legislation targeted at this problem. These include the UK’s Online Safety Bill and the European Union’s Digital Services Act, both of which place responsibilities on large online platforms to tackle harmful content. It is debatable if this will be an altogether satisfactory solution in the Metaverse, which in addition to walled gardens is also conceived as having ‘public’ spaces that could be difficult or impractical to manage through a platform as no one entity may have ownership of such spaces as to exercise effective control.

Intellectual property will be important in the Metaverse as it is on the Internet. For instance, just as copyright law applies to original works of authorship for material on the Internet, it also applies to the Metaverse. If anything, the application of intellectual property law and particularly fair use exceptions is likely to be more contentious in a 3-D virtual world. This reflects the constant policy tension between incentivizing creativity while not unduly hampering freedom of expression and more creativity. The US case of E.S.S. Entertainment 2000, Inc. v Rock Star Videos, Inc., 547 F.3d 1095 (9^th Cir. 2008) provides a useful exemplar in the context of trademark law. In this case the defendant created a number of fictional cities for the Grand Theft Auto: San Andreas video game that mimicked the look and feel of some West Coast cities. One neighbourhood in the game included a virtual cartoon-style strip club known as the ‘Pig Pen’. The plaintiff, who operated a strip club under the name ‘Play Pen Gentlemen’s Club’, claimed that the defendant infringed its trademark. The claim was dismissed on the basis that the representation of the ‘Pig Pen’ amounted to artistic expression that was protected by the public interest in free expression and there was no likelihood of consumer confusion. The public would not reasonably have believed that the plaintiff produced the video game or that the defendant operated a strip club.

The position is likely to be different if the San Andreas game featured characters that had items bearing the marks of well-known brands, particularly those associated with high fashion. The use of such marks in a game that is part of a series known for its ‘crass brand of humor, gratuitous violence and sex, and overall seediness’ (in the words of the judge) could harm the reputation of such famous marks, which is one of the means by which a well-known mark may be protected.

While uncertainty exists in relation to the shape and nature of the Metaverse, together with some degree of scepticism, the authors believe that the Metaverse will be a reality and at least as significant as the transformation of the Internet from its early phase to today’s Internet 2.0. And just as Internet 2.0 has gradually raised complex issues that society and the law have had to grapple with, so too the Metaverse will challenge our conceptions of how we should react to the new realities the Metaverse will raise because it is certain that with the further blurring of the online and real worlds, many new problems including at least some of those discussed in the paper will arise.

Keywords:  Metaverse; Internet; Regulation; Online Harms; Intellectual Property