Treating the Code as a Regulator: A Law + Technology Approach to Sexual Harassment in the Metaverse
By Rakshit Sharma and Vivek Kumar
(This essay is the winning entry of the 1st edition of the Himmat Essay Competition in collaboration with Khaitan & Co.)
Technology in the current era has become the Achilles’ heel of law enforcement. There have been innovations that can provide perpetrators a safe haven to engage in unlawful activities without fear of liability. Examples of such disruptive technologies include Artificial Intelligence, Blockchain, and Metaverse which have largely remained free from regulation because the laws cannot develop at their pace.
The impact of the inadequacy of the law enforcement methods is far reaching on the fundamental human rights such as the right to privacy. The right against sexual harassment is another fundamental right which might be violated, with no resource available to the victim, due to the advent of technology. Metaverse is one of these technologies which pose a danger to this fundamental right. Metaverse is a new innovation which allows the user to transcend into the digital world and perceive it as a completely different reality, detached from the real word. There have also been innovations such as haptic suits which allow users to touch and feel things from the digital world, adding another layer of realism.
However, the excitement and optimism is suppressed by the fact that such technologies have also been penetrated by instances of sexual harassment, leaving its victims without any recourse. For instance, a recent report by SumOfUs gives an account of instances of sexual violence against researchers and users on Meta owned virtual reality platform Horizon Worlds. The report gives account of a woman who was groped on the VR platform while she was wearing a haptic vest causing her to actually feel the act in real life.
Even though committed on a digital platform, there is no reason why such actions should escape liability. This article analyzes this main problem and tries to eliminate its root cause, by first examining the array of laws which seek to protect women and children against sexual harassment and contends that these laws can be construed in ways which can apply to virtual reality platforms such as Horizon Worlds. However, to effectively prevent instances of sexual harassment on such platforms, new and innovative enforcement methods would have to be formulated, which can be done by using the Law + Technology approach.
Extrapolating Sexual Harassment to the Metaverse: Are Our Laws Adequate?
The question with propositions related to technology has always been to see whether a particular provision or statute can be interpreted in a manner to include under its ambit, the violations of the same which happen through various technologies. In our case, the concerned technology is the Metaverse, or more specifically the land of Horizon Worlds.
Firstly, Section 509 of the Indian Penal Code, 1860 (“IPC”) may be analysed which prescribes liability when anyone, with an intention to insult the modesty of a woman, makes a sound or a similar gesture or uses an object to do the same. It is to be noted that any such gesture, sound or object can be showed or conveyed in the world of augmented reality as well. The same can also be derived from the fact that there is no explicit mention that such activities must take place in a tangible environment only, and shall not incur any liability if committed in a virtual environment. More so, the element of insulting the modesty of the woman is the actual outcome of the criminal act, which can happen over a virtual medium as well. Reference for the same can be seen in the instance mentioned in the previous section.
Secondly, Section 354A(1) of the IPC can also be taken into consideration. It prescribes four scenarios wherein sexual harassment will be said to have taken place. One such scenario mentions that a ‘physical contact’ or ‘advance’ encompassing sexually explicit behaviour will constitute sexual harassment. Upon bare reading of the provision it might seem that any such activity in augmented reality shall not come under its ambit, which might be true to some extent.
However, in order to make a case for the same, the doctrine of purposive interpretation may be referred to. The application of the same shall lead to examining of the statement of objects and reasons of the Criminal Law (Amendment) Bill, 2012 which introduced Section 354A and very clearly prescribed that one of the intentions of bringing the said bill was to “widen the definition of rape.” This implies that the ultimate goal of this bill, which was inspired from the 2012 Nirbhaya case is to ultimately ensure the safety of woman and protect their modesty by reaching and filling the gaps where other provisions could not reach, and hence the motive to widen the definition.
Upon applying this to the instance of groping as discussed in the previous section, it becomes very clear that the act would be covered under this section. More so, it can be argued that such instances are not hugely different from what happens in the physical world since the element of physical contact would be fulfilled by the presence of haptic suits which the victim would be wearing. This would lead to the victim feeling the physical touch of the perpetrator in real time when the offence is committed, making the distinction between the virtual and physical world redundant.
Thirdly, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) may be examined. In the said act, under Section 2(o) the term “workplace” is defined to include various ‘places’ under its ambit. As per the act, it also includes a private sector organization or venture which provides services. Herein, the dissemination of services or conduction of financial activities is an essential element. So, under the ambit of this definition, all the people who are working from home in a virtual mode, like teachers, educators, artists, etc., would be covered.
This gives rise to the question that if such workers are covered, why not people who are working through the Metaverse. It arises from the fact that the mode of work is same in both of these cases, and the existence of remuneration will be there in both the cases. Further, since the definition of ‘workplace’ under the POSH Act is an inclusive one and not exhaustive, the inclusion of Metaverse under the definition of ‘workplace’ does not appear to be far-fetched.
Fourthly, Section 7 of the Protection of Children from Sexual Offences Act, 2021 (“POCSO Act”) defines sexual assault against a child. The section lays down that “any individual who touches the private parts of a minor or does any other act with sexual intent has committed the offense of sexual assault” wherein emphasis should be paid to words “touches” and “sexual intent.” In the recent judgment of Attorney General of India v. Satish, the Supreme Court came down upon the judgment of Bombay High Court in Satish v. State of Maharashtra wherein it was held that skin-to-skin contact is a necessary ingredient for establishing sexual assault. The Court observed that the very object of POCSO Act is to accord protection to children from sexual abuse and a narrow interpretation would be detrimental to such an object. In line with this view, it would not be far-fetched to expand its application to virtual world which is predicted to be heavily dominated by the younger generation.
The Court reasoned that the primary consideration under Section 7 is ‘sexual intent’ and not the skin-to-skin contact thereby giving a wide ambit to the provision. However, some kind of physical contact would be needed to be established to persecute the offender under this provision. In such a case, if the offender has knowledge or has a reasonable basis to believe that the child was wearing a haptic vest when offence was committed, the element would be fulfilled. Therefore, if all the ingredients of the offence are present in a broader sense then the question whether the offence takes place in virtual or physical world becomes redundant.
Apart from the provisions discussed above, there are some laws that can cover violations taking place in the Metaverse without the need to broaden their scope. For instance, violations under Section 67A of the Information Technology Act, 2000 can be applicable to Metaverse if a user transmits sexually explicit material.. Simplest of interactions on the Metaverse would ideally be covered under this due to the nature of the scope of the act which covers such virtual interactions. Further, Section 354D of the IPC which defines Stalking, covering the monitoring of a woman on the internet, or in the case of Metaverse as applicable, following a woman and contacting her to interact with her against her will could be an example The same is true since the section does not explicitly say that such action needs to be happening in the real world only, rather the mention of the internet based monitoring makes the intent of the legislature further clear to include the virtual realms within the ambit of the law.
Though it can be proved to a certain extent that the bare text of the laws can be applied on the realm of the Metaverse, the question still remains as to who would be the enforcing authority for the same and how will the jurisdictions be divided in such a case. The solution suggested for the same, lies in the approach of creation of an autonomous entity which objectively monitors such activity, thereby creating a system of accountability to bring the wrongdoers to justice, or as close to it as possible.
Law as Regulator: The Integrated Approach of Law + Technology
There exists a need for the development of novel methods, which can help in solving the problem of enforcement. On virtual platforms such as the Metaverse, laws are, more often than not, redundant and code assumes supremacy. All interactions on such platforms are dictated by the code. Therefore, the regulatory potential of the code can be explored to counter the menace of sexual harassment on virtual platforms. Two approaches can be harmonized in order to achieve an efficient law enforcement framework. These two approaches are Code as Law and Code is Law.
Code as Law
This approach seeks to consolidate the application of existing legal frameworks to technology using code. Under this approach, the law is fed into the system in the form of computer code to facilitate compliance. This can be understood better with the help of a rather simple example. In a lot of OTT platforms, there are restrictions on the viewers which prevent them from recording the screen while they are consuming content on that platform. This technical feature has been inspired from the inculcation of laws related to copyright in the software of such platforms in order to ensure compliance and also to uphold the rights of the content creators on such platforms.
Upon the application of the said concept, the Metaverse can be reimagined as a place where laws would be in function, but in an autonomous sense. There still won’t be any enforcing authority, rather the legal principles would be incorporated in the form of binary and non-binary codes. In case of anti-sexual harassment laws, Code as Law approach can achieve their objective by inculcating their basic principles into the code itself. The fundamental principles such as the need for consent can be coded into the Metaverse itself so that, in absence of consent, no physical interaction between the users is possible.
Users can be given the right to reject physical interaction with other users in the Metaverse at the threshold. It can also be extended to allow users to completely bar certain users from interacting with them if they wish so. Another preventive measure would be to not send any sensation to haptic suits if anyone who does not have consent tries to touch the user. This takes inspiration from an actual incident which happened during the Beta Testing of the Horizon Worlds, wherein a feature was introduced referred to as a ‘Safe Zone’. When the said feature was enabled, the user would be kept into a protective bubble which would lead to the user being kept in a condition wherein any outside interaction would be disabled, and no one would be able speak to them or touch them. However, the major issue with this measure is that it doesn’t provide a deterrent to such activities. There is no penalty for the wrongdoer and the victims bear the burden of locking themselves away from interaction. On the other hand, the Code as Law approach can deter sexual harassment without burdening the victim.
Code is Law
This approach advocates that code can be used to regulate the virtual realm as the law. It is different from Code as Law approach as it does not seeks to incorporate existing laws into the virtual world but to formulate new regulations altogether using code. An example of this approach applied to prevent sexual harassment in the Metaverse would include the conjoint effect of two mechanisms at play wherein the first would be of machine learning and the other would be of technological integration. A record of data can be kept by Metaverse itself which can be facilitated with the help of Blockchain technology where the data of every offence committed by a user can be recorded in a private and encrypted format. Further, using machine learning and predictive algorithms, the conduct of such users can be predicted to a certain extent. Such predictions can be used to serve warning to such users if they attempt to exhibit similar behaviour.
More so, other restrictions related to movement may also be placed on them which correspond to a punitive impact as desired for harmonious functioning of the Metaverse. They can also be showed prompts from time to time which inform them of the consequences of such behaviour, whenever a repeated pattern of such behaviour can be seen in their activities. A particular scenario could arise wherein multiple instances of such conduct are seen, because of which the other users feel insecure and unsafe. In such a case, a threshold number of offences can be stipulated and when such a threshold is exceeded, the concerned user would be liable to pay a particular amount in an escrow fund which can be created with the help of Blockchain API. Funds can automatically be deducted from this escrow upon further instances of these cases being reported.
This could give rise to some concerns like wrongdoers creating new avatars for engaging in their wrongdoings, but such attempts can be sabotaged by the machine learning systems by comparing the pre-existing data of the behaviour of such wrongdoers which can be compared with new instances of such acts and similarity coefficients can be derived from the same, which can help in taking out this disguise.
Advantages of the application of ‘Law + Technology’ concept
Firstly, a system of such integration will be a landmark development in the field of Technology Law as it synthesises a direct connection between these two fields. It is pertinent to note that the need for such symbiotic application will not be coming to a halt anytime soon, so it becomes a pertinent need that the codifications of law can be understood in a manner that they can be applied from a technological standpoint wherein the intent of the law is covered and the rights of the people are protected.
Secondly, such collaboration does not work on a tangent of adjudication but the one of prevention, which covers a very important need of the hour when it comes to technology since there is a lack of technological and legal resources to properly adjudicate the plethora of cases that will arise out of such platforms.
The problems posed by technologies like these may not seem to be the biggest cause of action at this point of time, but this certainly does not mean that the impact of a technology like Metaverse can be considered to be trivial. Taking a cautious approach in timely exploring this realm is the way to go about, so that, during the period of reign of such technologies, the laws are kept up-to-dated and changes in coding can be made accordingly.
Art taken from: <a href="https://www.freepik.com/free-vector/woman-wearing-virtual-reality-glasses_3298168.htm#query=metaverse&position=22&from_view=keyword">Image by katemangostar</a> on Freepik