Described as the future of the internet, the metaverse is at an early stage but is gaining momentum. While a virtual-reality parallel universe is likely several years away, entirely new areas of law have been developed to address the online world. As a result, cyberattack or data-breach class actions have become common. No matter what form the metaverse ultimately takes, the law will develop in response.
This article considers some unique litigation issues that the metaverse might raise.
1. What Is the Metaverse?
The term “metaverse” is used in different ways. Here, we use it to mean a 3D version of the internet — an immersive digital world that exists in parallel to the physical world, with which you would interact using a virtual reality headset. In the most idealistic visions of the future, the metaverse will be fully interoperable. You and your virtual possessions could move seamlessly from the digital space maintained by one platform to that maintained by another.
2. Privacy Litigation
If the metaverse develops as anticipated, it will involve the collection of an unprecedented amount of data about users. As is common now, platforms could collect data about what users buy in the metaverse, what they look at, and their conversations with other users. However, because a user’s access to the metaverse would be through a headset, more data could be collected that will give platforms a deeper understanding of their users’ thought patterns and behaviours.
The bulk of privacy litigation related to the conventional internet in common law provinces has focused on the tort of intrusion upon seclusion. This tort addresses the scenario where a defendant intentionally intrudes into the plaintiff’s private affairs in a manner that would be highly offensive to a reasonable person. In addition to a data-breach scenario, it is possible to envision other metaverse cases of intrusion upon seclusion.
If it is possible to buy virtual real estate in the metaverse, for example, a defendant could be liable for snooping in a plaintiff’s virtual home. Or imagine a scenario where a defendant compromised the plaintiff’s headset and so could follow their movements, conversations and perhaps even thoughts. Given the sensitivity of data that the metaverse could collect, the stakes would be high.
While existing privacy causes of action could be applied in the metaverse, courts or legislatures may seek to create new ones. Could a metaverse operator be liable for negligently failing to prevent a cyberattack that resulted in the compromise of user data? If a metaverse user breaches the privacy of another user, could the platform be liable for failing to prevent the breach? Time will tell how the law develops in response to these challenges.
3. Product Liability
The metaverse is projected to result in a vast market for virtual and physical products available for purchase and use by customers, such as software, virtual non-tangible items and hardware like headsets and glasses. Accordingly, several kinds of potential product liability claims in connection with the metaverse may arise in the future. By way of example, product liability claims could result from individuals sustaining personal injuries in the virtual or augmented reality of the metaverse. Metaverse users may also be sued by other users for their conduct in the metaverse as it relates to another person or avatar.
Complicated and novel arguments will almost certainly arise in this emerging area in the context of product liability claims. These may include questions surrounding who is potentially liable for metaverse-related claims, choice of laws and forum, and where a claim should be brought when loss or injury occurs while in the metaverse. Given the potential for a range of product liability claims in connection with the metaverse, industry participants will want to obtain legal advice and consider how to limit their liability.
No matter how the metaverse develops, it will undoubtedly give rise to novel legal questions and issues.
For more information, please contact any member of our Litigation & Dispute Resolution group.
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