Date: 30 September of 2022
Ricard Martinez Martinez, Professor in the Department of Constitutional Law, Political Science and Administration, University of Valencia, Academic Advisor of Fide.
Alejandro Padin, Partner in the Garrigues Commercial Law Department, responsible for the IT, Data Protection and Electronic Commerce area.
The metaverse is an emerging phenomenon consisting of a set of mostly existing technologies. Notwithstanding the foregoing, its evolution presents great legal challenges, especially relevant from the perspective of privacy.
In order to elucidate its challenges, it is essential to define the concept. The metaverse was defined as the translation to the virtual world of real life. If this is really the definition, we would have to ask ourselves nuclear questions such as the following: is it taxed in the metaverse? What jurisdiction is competent in this reality?
With the appearance of cookies and social networks, a private life monetization model also emerged that was characterized by the absence of delimiting rules. Everything that was not expressly prohibited was understood to be permitted. Are we going to witness another wave of innovation in which almost everything will be allowed due to the absence of rules?
In a metaverse or virtual space in which a sporting activity is monitored through sensors, and a professional controls whether it is being carried out correctly, how will this processing of personal data work?
At all times, a cybersecure environment will be entered, in which:
- You will have the ability to control your data, which will be used only for business purposes.
- If there is any other purpose, a clear management framework will have to be established.
This environment goes beyond mere privacy policies, and must include three essential conditions: cybersecurity, portability and interoperability, and traceability. As digital environments become more complex, traceability is essential to control uses and avoid risks.
However, there is an element that has not yet been able to be disciplined: the tension of anonymity in digital environments. In fact, the Digital Bill of Rights speaks of the right to “pseudonymity”. This is because it is not yet possible to ensure that non-traceable anonymity is not a risk generator in a digital environment.
How are we going to apply legislation based on territoriality in relation to the concept of anonymity and the difficulty of linking an avatar with a legal person?
First of all, it should be made clear that there is no homogeneous international framework on this matter. A reasonable criterion could be that of the place of production of the damage, although in the caso of the metaverse this place is questionable. For example, is it where the server is? Is it where the physical person is located?
In the absence of a clear international framework, the old rules could be used, that is, that the judge himself determines his jurisdiction.
International Law should aspire to establish rules that allow this problem to be solved with mechanisms similar to those that were developed historically to regulate other issues of global relevance (air traffic, telecommunications...), which were regulated in international cooperation agreements. In this regard, much remains to be done.
Only at a global level, with the development of international standards, can these types of issues be regulated, agreeing on what is common and usable for all.
Risk for minors on the Internet
On many occasions it is impossible to apply policies for the protection and guardianship of minors, since the terminals are not associated with minors, the parents being identified as owners. This has escalated over time, especially in data analytics and emotional marketing, with entities that are capable of developing advertising strategies aimed at minors from an emotional point of view, which has a great capacity for impact.
The above in the metaverse is amplified, with the possibility of advertising that does not even appear as such, benefiting from algorithms (for example, the algorithm could favor a type of pants, triggering its sales). Other existing problems can be added to this, such as the dependency that the metaverse or the cyberbullying.
In addition to all the possible problems that the metaverse can generate, it would be interesting to take advantage of its functionalities, putting it at the service of education and making virtually accessible to more people what only a few can afford in real life.