“Tantalizing vision can be dangerous,” as Dumbledore in Harry Potter and the Sorcerer’s Stone explains about the Erised Mirror to Harry.
“This mirror will give us neither knowledge nor truth. Men have wasted away before it, entranced by what they have seen, or been driven mad, not knowing if what it shows is real or even possible.”
Virtual reality (VR) is an end-to-end digital mechanism that impersonates our natural surroundings through computer programming and simulation through artificial three-dimensional visuals.
In virtual reality, lifelike representations of humans react to virtual objects. These interactions are multisensory human stimuli while feigning a parallel vision. This broadens the distinction between the actual world and a world beyond physical reality.
In the present society, from gaming and social networking to education and healthcare applicability, the use of virtual reality is escalating day by day. Even businesses have started to use virtual reality software to bring their product to life and allow their patrons to devour content in an immersive environment.
Virtual reality is no longer science fiction as different industries have started to integrate it into their commonplace functioning. In the healthcare industry, specialists need to perform critical operations practice without being in the midst of an emergency with VR. The entertainment industry was one of the first to incorporate VR into cinemas and theme parks to simulate movie-like adventures.
VR in the automotive industry helps manufacturers simulate situations to analyse circumstances and make changes in prototypes before a new model is developed. VR is a part of educational games, field trips, and other general physical experiences. Architects use VR to experience the space before it is built.
In terms of social science and psychology, VR is used by the patient to embody someone else and imagine reality from a different perspective. Recently, even German prosecutors and police developed 3D technology to help them catch the last living Nazi war criminals with a highly precise model of Auschwitz.
In terms of development in technology law, the European Commission in April 2021 proposed an EU regulatory framework for AI. But as of now, there isn’t any Virtual Reality Act throughout the world. This is largely because existing laws are often drafted to be technology-agnostic and principal based in a way that makes them applicable to all general relevant technology. There are a few examples of how existing laws can be pragmatic in virtual reality.
There’s no “robot person” or a “virtual person” introduced in law. Therefore, an avatar can probably be a natural person under existing laws and not a juristic person.
Virtual contracts can be concluded in virtual reality with equal legal force and effect like any other contract. However, the determination of the jurisdiction will pose difficulties.
Most jurisdictions will recognize virtual signatures as a form of electronic signature and will probably have equal effect and attestation.
Countries will try to update the laws to apply virtual evidence, more specifically electronic evidence.
Board meetings determining the functioning of a company can be concluded and administered through virtual realities.
The windfall of Virtual Reality (VR) has either altered reality for most or granted them the opportunity to define and create their reality. This simulated three-dimensional (3D) environment blurs lines between the actual physical and virtual worlds.
Ultimately, which world remains to be “real” is to be seen. The major legal concern raised currently about the use of VR is the violation of the Intellectual Property Rights (IPR) of a person/entity. With the emerging 3D-enabled digital space termed Metaverse, there has been an influx of IPR infringement cases in the courts across the world.
Metaverse would include VR, AR (Augmented Reality), IoT (Internet of Things), and NFTs (Non-Fungible Tokens) based on Blockchain that allows people to interact with each other in a virtual world.
The case of Hermès v. Rothschild has gained significant attention due to the decision of the court on questions involving trademark infringement of NFTs. A jury in the Southern District of New York decided the dispute between luxury goods company Hermès and Rothschild.
Hermès owns the IP to a product sold by them in the physical world named Hermès Birkin Bag. Rothschild created NFTs named MetaBirkin in the Metaverse. The jury held that the creation of MetaBirkin by Rothschild constituted trademark infringement, trademark dilution, and cybersquatting of the IPR of Hermès.
Metaverse and VR In Metaverse is an evolving area, and therefore, the legalities of it remain in the grey. However, the question of infringing copyright was not addressed in this case.
Generally, copyright laws protect the author's work, including their right to reproduce, adapt, distribute, and sell them. In India, no IPR infringement cases have been decided yet about the Metaverse. Nevertheless, with the influx of users of Metaverse, the world will have to be removed from this quandary by tweaking or bringing in new laws to regulate the virtual space.
Creating a virtual reality involves the same threat being faced by other electronic devices and the growing popularity of VR poses major privacy breaches and data protection concerns.
The invasive nature of VR includes collecting highly personal data such as location, biometrics, retina scans, facial scans, fingerprints, voice prints, etc., that can be accessed and transferred to any third party.
Section 43A of the Information Technology Act, 2000 (IT Act) read with (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“SPDI Rules”) states that compensation has to be paid for negligence in implementing and maintaining reasonable security practices and procedures while handling sensitive personal data/information. That being the case, if the VR collects sensitive personal data from the data provider, SPDI Rules will have to apply to them.
Further, with the enactment of the much-awaited Digital Personal Data Privacy Bill, of 2023, crucial concerns regarding sensitive personal information, data protection, and privacy are expected to be addressed.
“In the dream state, your conscious defences are lowered, and it makes your thoughts vulnerable to theft.”
While this popular dialogue from the movie Inception talks about stealing thoughts/ideas from dreams, another parallel that can be drawn is theft in the virtual world.
In VR, any person or entity can collect and transfer personal data including biometrics, location and other digital prints. One will not be aware of the data being leaked as VR has the power to leave any person defenceless and subject to manipulation and influence that may easily become a part of the physical reality too. Consequently, one would lose grasp on what is real and what is virtual leading to multiple realities.
Committing crimes in the virtual world such as harassment of a virtual avatar by another virtual avatar, committing murder/culpable homicide or attempt to commit murder/ culpable homicide or abetment of suicide in the virtual or physical world, etc. will also be scrutinised in the years to come.
For example, circumstances or influences or manipulations by another person/entity in the virtual world may lead to a person attempting to murder the physical world. The question which arises here is whether any other person/entity part who might have played a role in influencing any person to act on it should be held liable for murder/culpable homicide along with the person committing the act under Sections 299 (Culpable Homicide) or 300 (Murder) of the Indian Penal Code, 1860.
Additionally, subject to the reality in which they have committed the crime, will the perpetrator be punished in the actual physical world or the virtual world?
Similarly, one can also overstate that a court may be established or set up in virtual reality to try offences with its procedural laws. The question that remains is whether there is an end to this and will all the realities be able to co-exist at the same time.
The common precedent followed by the courts is that the right to privacy does not survive death.
In the case of Ruba Ahmed & Ors v. Hansal Mehta & Ors., the Delhi High Court explicitly held that, "Right to Privacy is essentially is a right in personam and is not inheritable by the mothers/ legal heirs of the deceased persons.”
With the creation of virtual reality, the deceased can be resurrected in a virtual world. In such circumstances, will the right to privacy survive in a new reality?
The virtual world allows any person/entity to create a virtual person/ world either dead or alive. Legal heirs of a deceased could then contest the use of the image or the creation of the deceased in virtual reality by somebody else.
The creation of VR should not be limitless where any person/entity can create a virtual version of anybody at their whims. The limitless nature of VR can incite violence in the physical world and tarnish the image of the dead after being long gone too.
This will unquestionably give rise to issues of IPR infringement and the violation of fundamental rights, including the right to equality (Article 14 of the Constitution), the right to freedom of speech and expression (Article 19), and the protection of life and personal liberty (Article 21), both in the physical and the virtual world.
About the authors: Ashita Sahay is an Associate and Kiran Patel is a Trainee Associate at SNG & Partners.