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Were you one of those lawyers or students who felt an obligation to ‘catch ‘em all’ in 2016 through the mobile phone app Pokémon Go? You are not alone as the game attracted millions of players around the world. The app uses augmented reality (AR) adding a layer of Pokémon on to the real picture generated by the phone’s camera in addition to using its GPS tracking system. The game generated several complaints of trespass and nuisance[1] in reality as people became absorbed in the virtual world #rude. It is easy enough to understand users of virtual reality (VR) or AR should be responsible for their direct actions in the real world but this article examines some of the legal opportunities and complications offered by VR and AR technology.
Gotta catch the benefits
While court rooms have not yet utilised AR or VR, it's not far off if the necessary legal reforms are made just as they were when we introduced video conferencing and voice recording for statements. Acceptance may be slow and there are still certain criteria to meet, similar to video conferencing following the landmark decision in Polanski v Conde Nast Publications Ltd[2]. AR and VR could be used to recreate scenes, prepare witnesses and experts and conduct police lineups.
The use of AR and VR in legal education is also not far off with the appropriate policies and resources to ensure the virtual or augmented environment remains acceptable as if it were the real world. Research has suggested if you can run through your submissions in a room just like the court room, the experience will be considerably more authentic and helpful in the actual court room.[3] Imagine gaining real practical skills as a law student mooting in a virtual court room or interrogating a virtual witness rather than a sassy lecturer.
Gotta avoid the complications
There are key intellectual property issues rising in the use of AR and VR. Earlier this year, Facebook was ordered by a United States court to pay $500,000,000 to ZeniMax after Facebook’s Oculus VR headset was found to infringe intellectual property rights.[4] It is expected the usual intellectual property protection laws will apply over virtual goods but there is an inherent problem with damages if the sales of real goods are not impacted by the virtual goods. #BetterHaveMyBitcoin
There are notorious examples of virtual crime. A female player had her avatar’s virtual crotch grabbed by another player and she explained the virtual groping was the same as being groped in real life due to the psychological trauma inflicted.[5] While the Queensland Criminal Code would not treat virtual assaults the same as real assaults, this may change in future as body suit technology is developing to the point where the user may feel a kick, punch or grab[6]. In 2013, an English player was convicted after he stole virtual property by hacking into gamers’ profiles in RuneScape to then sell the virtual assets for real money.[7] Interestingly, he was charged with hacking rather than theft because the items he stole only existed in the virtual world and the victims had no redress for losing their virtual resources.
VR and AR providers will need to assess if they are excessively collecting, using and sharing a wide range of users’ personal information without the appropriate consents in place. In 2016, it was claimed that Facebook’s Oculus’ terms and conditions allowed Facebook to monitor users’ movements and use it for advertising.[8] Facebook responded at the time saying the information was not shared but it may have a desire to in the future to do so. The Full Federal Court said personal information must be ‘about an individual’[9] meaning metadata in some circumstances could be personal information.
Gotta understand the virtual world before we reform the law
A blogger for the European Commission has gone so far as to question whether VR experiences may ever be ‘safe’ from an ethical point of view raising concerns about the lack of research into effects of VR on real human behaviour.[10] AR and VR platforms are continually emerging through mobile phones providing greater access and lower costs. The future for AR and VR looks unique but challenging to our traditional legal system and society standards. The administration of justice and rule of law have always been paramount in our real world and we will need to extend this to our virtual world. We will see what lawyers become the best – in fact, the very best in this growing legal area.
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[1] Andrew Rossow, ‘Gotta Catch…A Lawsuit? A Legal Insight Into the Intellectual, Civil, and Criminal Battlefield ‘Pokémon Go’ Has Downloaded onto Smartphones and Properties Around the World’ (2016) 16 The John Marshall Review of Intellectual Property Law.
[2] Polanski v Conde Nast Publications Ltd [2005] UKHL 10.
[3] David Pope and Dan Hill, Mooting & Advocacy Skills (2007) Sweet & Maxwell, London 77.
[4] Facebook Ordered To Pay $500 Million In Oculus Lawsuit, Forbes, forbes.com/sites/kathleenchaykowski/2017/02/01/report-facebook-ordered-to-pay-500-million-in-oculus-lawsuit/#5d509417121d
[5] Jordan Belamire, ‘My first virtual reality groping’, 2016, mic.com/articles/157415/my-first-virtual-reality-groping-sexual-assault-in-vr-harassment-in-tech-jordan-belamire#.HropaUbv9
[6] John Pavlus, ‘Get a Virtual-Reality Punch, Feel Real Impact’, 2015, technologyreview.com/s/543291/get-a-virtual-reality-punch-feel-real-impact/
[7] Dan Bloom, ‘Computer hacker stole virtual property from online fantasy gamers to pay off REAL gambling debts’, 2013, dailymail.co.uk/news/article-2519425/Computer-hacker-stole-virtual-property-online-fantasy-gamers-pay-REAL-gambling-debts.html
[8] Andrew Griffin, ‘Oculus Rift Terms and Conditions Allow Facebook to Monitor Users’ Movements and Use it for Advertising, 2016, independent.co.uk/life-style/gadgets-and-tech/news/oculus-rift-terms-and-conditions-allow-company-to-monitor-users-movements-and-use-it-for-advertising-a6967216.html
[9] Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4.
[10] Michael Madary, ‘Are Virtual Reality experiences safe from an ethical point of view?’, 2016, ec.europa.eu/digital-single-market/en/blog/are-virtual-reality-experiences-safe-ethical-point-view