The barriers between fantasy and reality in virtual worlds are becoming increasingly permeable. There is a rhetorical need among some legal scholars to distinguish between a law of virtual worlds or concepts of net-sovereignty and the so-called real world. These metaphorical distinctions are unhelpful and confuse the issues as to exactly what is being regulated. A more productive line of analysis is to consider the avatar as an extension of the individual or an agent of the individual in virtual spaces and then to shift the focus of analysis away from the avatar and back to the individual because it is the potential negative effects that virtual behavior may have on real-world individuals that the law seeks to regulate.
This leads to a question of when virtual behavior should be punished. This Article examines some conceptions of computer-mediated communication (CMC) or non-verbal communication (NVC) to suggest that this area of research is useful in understanding the nature of the relationship between the individual and the avatar. Together CMC and NVC are useful tools to understand a human-avatar relationship. An evaluation of the quality of this human-avatar relationship is essential when determining whether virtual harm done to an avatar has a sufficient nexus with the real-world individual so that the law should intervene either criminally or civilly.
This Article then discusses the personhood rational to protect property rights and the tort of negligent infliction of emotional distress as two possible legal theories that are dependent on the quality of the relationship and as two real-world legal theories that are potentially applicable in virtual worlds depending on the nexus between the individual and avatar. This inevitably leads to the question of when a virtual injury to the emotive avatar in a virtual world should be legally sanctioned. This Article suggests that the law of the real world should be modeled on the existing body of law governing real-world games as one possible model. Private law-making, such as terms of service agreements, end user licenses, and private agreements among players, either explicitly stated or expressed as social norms, should provide the law governing the relationship among avatars and consent by their human principles for the injuries received while immersed in a virtual world. These private agreements may be also used to criminalize extreme behavior in virtual spaces by novel uses of existing laws such as the Computer Fraud and Abuse Act. Consequently, there is already a relatively complete and evolving body of law governing virtual world conduct and its effects in the real world.
Llewellyn J. Gibbons,
Law and the Emotive Avatar,
11 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol11/iss4/6