By: Harsh Agrawal & Rashi Jain

(This post is the second of a two part series on the topic – ‘Expounding the Contours of Sexual Harassment in Virtual Reality: Applicability of the Penal Laws to State-of-the-Art Technology’)

The 1^st part of the blog talked about the experiences of VR from the lens of a user and how and why sexual harassment in VR is a cybercrime. This part will highlight the existing legal recourse we can take in India against it and then will talk about the limitations of these remedies and laws in general against sexual harassment in VR. It then proposes technical as well as legal suggestive measures to tackle the limitations and make Web 3.0 a safer place.

EXISTING LEGAL REMEDIES

The existing legislation that deals with online harassment to some extent is the Indian Penal Code (hereinafter ‘IPC’) and the Information Technology Act (hereinafter ‘IT Act’). Sexual harassment in VR can be considered a criminal offence committed through a very specific electronic medium, i.e., VR, and hence is a subset of online harassment and can be brought under the purview of the IPC and IT Act. Though the IPC does not exclusively provide punishment for online harassment against women, it proscribes it under Section 354D and Section 509, which deal with stalking and insulting the modesty of a woman, respectively.

The IT Act 2000 is specialised legislation that deals with electronic communication and technology, hence the crimes committed in VR can be brought under the purview of provisions like Section 66E which deals with violation of privacy by transmitting, capturing and publishing the image showing the private area of a person. Since the modus operandi of the metaverse, like any other communication medium, is sharing information and data by connecting people around the globe, the protection by victims of privacy violations can be sought under this section. Similarly, protection can also be sought under the following sections: Section 67 (publication and transmission of obscene and lascivious materials), Section 67A and Section 67B (transmission or publication of sexually explicit acts or conduct including engagement of children). As the activities carried out in the virtual space occur through electronic media, the IT Act 2000 is the best legal recourse we have to combat such criminal activities.

LIMITATIONS

These legislations were drafted by legislators as per the prevailing technology of that time, hence there are many limitations to them.

• No law until now solely addresses online harassment. Section 354A IPC punishes the offence of sexual harassment but doesn’t include online harassment in its purview.
• No legislation anywhere around the world provides for the punishment of a person for the acts committed via their avatars. Avatars aren’t considered persons under the law, so vicarious liability cannot be imposed since it is not a principal-agent relationship. Hence, this virtual personification of a human is a legislative grey area which needs deliberation.
• The scope of sexual harassment that can be committed online has gradually widened with the introduction of VR. The current legal regime is not well suited to addressing the same.
• Due to enhanced user experience, the punishment under these laws might not be adequate to suffice the harm endeared by the victim and in most cases, it might not even be possible to trace the perpetrator due to the shielding that digital space provides.
• Anomalies regarding the extra-territorial jurisdiction of Indian criminal courts under Section 179 CrPC, Section 4(3) IPC and Section 75 IT Act, further complicate the application of law in this arena.

In State of West Bengal v. Animesh Boxi, while convicting an accused under various sections of the IPC and IT Act the court held that the victim was not only stalked online but also suffered from ‘virtual rape’ every time a user of the openly accessible global website viewed the video that was uploaded by the accused. The court emphasised the seriousness of the issue and the need for adequate sentencing. The court noted the saying of Justice Stephen Breyer of the US Supreme Court, “In this age of science, science should expect to find a warm welcome, perhaps a permanent home, in our courtrooms… Our decisions should reflect a proper scientific and technical understanding so that the law can respond to the needs of the public.” Hence, it is incumbent to keep the law in pace with technological advancements. The next section will explore some possible measures, both technical and legal, to provide solutions to the issue at hand.

SUGGESTIVE MEASURES & THE WAY FORWARD

While the nascent and evolving nature of the metaverse creates a roadblock in the creation of policy frameworks, harassment in virtual space can still be regulated by deploying appropriate technical measures, some of which are as follows:

• VR Operators to set up in VR “Police”- This will enable dealing with offenders speedily, and for resolving such issues at least within the VR when a user reports any abuse. Although the penalties will most likely be restricted to suspension or exclusion from VR space, it will be a temporary quick fix against the miscreants.
• Bar on Waiver of Liabilities of the Operator- VR operators might try to relinquish their liabilities on harassment by making it obligatory for users to mandatorily accept the terms and conditions. There must be a bar on such contractual terms that wavers their responsibility towards the users.
• Mandatory Requirement of Credit Card or a Monetary Deposit- VR operators can make it mandatory for users to provide their credit card or make a deposit. It will effectively help in reducing fake IDs and the operators might even impose fines or forfeit deposits for any misconduct.
• Installation of Biometric Authentication & Facial Recognition- This can be an obligatory requirement to log into one’s avatar. Although this entails data privacy concerns, with an effective data protection regime, it will help in offender identification since most of the time, users shield themselves under the garb of pseudonyms and tracing them becomes difficult.

Deployment of these technical measures will help in mitigating the instances of harassment. Nonetheless, legal recourse should also be available to the victims, especially in the case of serious sexual harassment instances.

• Legislative Considerations- Section 354A IPC can be amended to include online sexual harassment under its ambit. The scope of the IT Act 2000 can be widened to include in-VR harassment under its purview.
• Judicial Considerations- While the development of the metaverse and subsequent changes in the law, liberal interpretation of the existing laws shall be done by the judiciary so that justice can prevail in the meantime. IPC should be read to include virtual groping as outraging the modesty of a woman in Section 509 and stalking in virtual reality under the definition of online stalking in Section 354D. Since these harassments happen live on-screen, they should be considered as a visual image and hence can be brought under the definition of “transmit” of the IT Act.
• Victim Compensation- Victims of sexual harassment in VR should be able to avail of the compensation provided in the Victim Compensation Scheme under Section 357A CrPC. Section 357A (4) also provides the victims with an application to SLSA for compensation, particularly in the case where the offender is not traced or identified, which could be a very possible and common situation in online harassment committed in VR.

CONCLUSION

The conduct involved in committing sexual harassment “in” a virtual world will to some extent occur “in” that virtual world, but it ultimately remains grounded in physical reality. In response to the sexual harassment incident, Meta has unveiled a ‘personal boundary’ feature, which is a welcome move but it strategically shifts the onus of safety onto the users themselves. This should not provide blanket protection to companies from taking responsibility for their services. The laws that we currently have in place for digital space protection are extremely limited, both in terms of scope and applicability. Until we figure out whose responsibility it is to protect the users and how the state and judiciary should adopt an active outlook like the federal prosecutors did in Belgium to combat the situation. This new-age technology requires policy review and legislative insights to gauge how far we’re willing, and most importantly, ready, to go completely virtual. Until we have clarity on how the metaverse is going to pan out, who will be accountable and to what extent, it will remain a dangerous and problematic space.

(Harsh and Rashi are law undergraduates at Dr. Ram Manohar Lohiya National Law University, Lucknow, and ILS Law College, Pune, respectively. The author(s) may be contacted via email at harshagrawal17831@gmail.com and/ or rashijainrj.1999@gmail.com)

Cite as: Harsh Agrawal and Rashi Jain, ‘Expounding the Contours of Sexual Harassment in Virtual Reality: Applicability of the Penal Laws to State-of-the-Art Technology (Part 2)’ (The RMLNLU Law Review Blog, 24 May 2022) <https://rmlnlulawreview.com/2022/05/24/metaverse-2/>   date of access