Exploring The Dynamics Of Technology: Sexual Harassment In Metaverse

Entering the world surrounded by human like creatures in a parallel universe, unknown and undiscovered, performing actions resonating with magic. That creates a picture of a beautiful world in three-dimension that previously were part of your imagination .The effect of majestic visuals further magnifies when the sense of touch in the virtual world can also be felt in the physical world. This is the story of Metaverse! Now what will you do if another avatar comes up to you and gropes you while you are exploring the unrealistically real world?

Now, imagine it is a pay day and you enter your bank, virtually, to withdraw your real money and another customer flashes a pornographic image at you. That image will make a permanent imprint in your brain, even though it was shown virtually. A cruel and embarrassing experience in the virtual space, like this, is likely to leave a permanent impact on the victim who might not even know how to deal with the same in real world.

Metaverse offers prospects for businesses, enhanced experience of socializing and gaming to developing e-governance models which is no longer a science fiction.

What is Metaverse?

Metaverse is a virtual environment built by Facebook, now rebranded as ‘Meta’ (“Meta”), where users are represented by avatars to navigate a virtual world.^[1] It allows users to interact with 3D virtual worlds using their avatar where they can work, study or have fun in the virtual universe. ^[2]

All of this is possible because of the virtual technologies that exist today such as, Virtual Reality (“VR”), Augmented Reality (AR), Mixed Reality (MR) and Extended Reality (XR) that enables users to enjoy immersive virtual experience which is enriched with realistic feedback sensors.^[3]

What are the possible uses of Metaverse?

A couple from India’s Tamil Nadu hosted first wedding reception in Metaverse, Punjabi singer Daler Mehendi performed virtually on Metaverse for his performance on the occasion of 73^rd Republic Day making him the first Indian artist to enter the virtual world of entertainment.^[4] The expanding dynamics of Metaverse has intrigued everyone to try their hands with the new technology. Further, Telangana Government in 2022 even launched its first ever SpaceTech Framework through Metaverse thereby making it the first official programme to be hosted on the platform. ^[5]

Seoul Municipality has opened a Metaverse Office.^[6] The platform is said to provide the citizens with the option to access official documents and file certain types of complaints. The citizens can even access information to file municipal taxes. Similarly, the governments across the world, such as Maldives, Sweden, Estonia, Serbia, Kazakhstan, have established virtual embassies.^[7]

Metaverse was initially perceived as a source of leisure for users of the platform and paved the way for the 3D online games like PubG and Fortnite to name a few. The ‘social’ element in Metaverse is more engaging than anything else, especially for the young generation.

In view of the exponential growth prospects that Metaverse inhabits, following are the elements that it can effectively offer:^[8]

• Digital currency
• Online shopping
• Workplace automation
• Social media
• Digital Humans
• Infrastructure
• Online gaming

Thus, Metaverse with its digital avatars has been very successful in creating an alternative workplace for employers and employees together. A place where everything is clinically precise and structured with a clean aesthetic

Horizon Home and Horizon Work are virtual social rooms are which can be utilized for catching up with friends and conducting business meetings on the platform.^[9] Not only Meta, Microsoft has been experimenting with the elements of cyberspace and developing platforms that allows users to connect with people and share space and collaborate with anyone in the world with use of Microsoft Mesh that can enable business meeting through virtual modes while working remotely.

Challenges in the Metaverse

Regulations that work in the real world should also work in the virtual world.

Though Metaverse is full of opportunities and growth prospects for organizations and the world as a whole, it still poses daunting challenges for all.

The existing threats to the citizens’ data collection and sale of the same to third party aggregators, harassment with targeted marketing campaigns, weak security procedures, cyber-attacks, and identity theft can lead Metaverse to become a safe haven for harassers, criminals and fringe groups.^[10]

Identity in the Metaverse

This is one of the many grey areas where the Metaverse operates but is a big concern when comes to legal stand point. The representation of self through the use of avatars is one such fascinating factor that draws people towards the Metaverse to engage, experiment and meet people online in the virtual world. There is high tendency of people engaging in behaviors they would not necessarily be comfortable doing in the physical world.

The Report on Gen Z and the Metaverse by Nokia,^[11] talks about how actions in Metaverse are stimulated by the alter egos of humans in the real world. The Report clearly mentions about the use of anonymity in the virtual world to engage in manipulative and deceitful behavior by men results due to the lack of consequences in the physical world.

It must be duly noted here that it is already a challenge for authorities to deal with fake identities in the existing forms of social media.

Sexual Harassment in the Metaverse

The platform raises safety and security concerns with the recent ‘groping’ and ‘gang rape’ incidents that have happened in Metaverse. As reported, in one of the incidents, a beta tester felt something deeply troubling when she was groped by a stranger on Horizon Worlds. ^[12]

An act of sexual harassment in the Metaverse, though, does not involve physical touch, it can still be as traumatic as it would have been in the physical world since the avatar (Representation of self in the form of in built characters in the Metaverse) is practically and technically the user in the physical world. Thereby creating the same mental trauma and impact on the victim on whom such act of sexual harassment is performed making it even more difficult to ascertain and understand the sequence due to no redressed mechanism applicable to a virtual act in either in the physical world or the virtual world. .

The platform, in fact, provides the perpetrators with the best place to hide and continue with their natural behaviors without facing the consequences of the real world.

Spread of false and misinformation through Artificial Intelligence

Another difficulty that encompasses with the Artificial Intelligence (“AI”) and Metaverse is the risk of creation of false narratives with facts and evidence as has already happened and available in public domain. As per an article dated April 23, 2023 of Washington Post, ChatGPT (AI Chatbot) generated a complete list of “legal scholars who had sexually harassed someone” with a law professor’s name in it and even cited an article of the Washington Post as a source of information.^[13] The said article was entirely based on false and fabricated facts and held not credibility.

However, what needs to be looked at it is the ability of chatbots to create false and concocted stories that can mislead people to believe untrue facts and defame an innocent person. The chatbot even created fake evidence to make its information look real. Now that is called creation of ‘human like content’.

In the wake of increasing ‘intelligence’ of AI tools, the Ministry of Electronics and Information Technology on April 06, 2023 has notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021^[14] for safe and secure internet. The said amendment makes it obligatory for the intermediaries to not publish, share or host fake, false and misleading information in respect of any business of Central Government. Further, the said Amendment has been notified to identify false and fake information by the Fact Check Unit of the Central Government.^[15]

Considering the given scenario, with the Fact Check Unit in place, will the parent company of AI chatbots be made liable in case of spread of misinformation at their end, if a similar situation happens in India?

Other challenges in the Metaverse

From the perspective that Metaverse covers everything in the same manner as in the real world, there cannot be one single law that can provide a blanket regulatory environment in the Metaverse. Therefore, data protection and cyber security, anonymity and harassment, ownership, demarcation of territories are some of the issues that need to be addressed worldwide holistically.

It would be safe to say that the process of ascertaining and preparing a regulatory framework to enforce individual privacy in cyber space, is under construction in India and may be presented before the Parliament anytime soon. However, the Bill though covers a wide aspect of data protection and privacy of personal data of citizens, it still would not provide regulatory mechanism for other concerns.

Considering that the cyber space is an extension of physical world, the applicability of laws in physical world should also extend to the virtual world.

Sexual Harassment in the Metaverse: A Labour Law Perspective

Metaverse is not only used for the purpose of playing online games and socializing in the cyber space. Organizations and even governments have adopted the platform to set up their workplaces in the virtual worlds. Sexual harassment of an avatar that is very much close to the real selves of persons operating the avatar can be offensive and traumatic.

Metaverse can really heighten the exposure of an employer in cases of sexual harassment in many ways. Now, what does a case of sexual harassment in the virtual workspace mean and how would it be dealt? Can the employer be made vicariously liable for their employee’s behavior in the Metaverse?

Technically, it is the duty of the employer to ensure safe and healthy work environment at workplace, now in case of Metaverse, it is the employer who selects Metaverse as an appropriate platform for employees to work at.

Taking the POSH Act into account, it extends its ambit to the virtual workplaces as well. The definition of a ‘workplace’ as per the POSH Act includes the following workplaces:

The definition is further expanded^[16] to include:

• any private and public sector organization;
• the definition also includes hospitals or nursing homes to be “workplace”;
• sports institute, stadium, complexes, competitions and games venue are also includes within the ambit of workplace;
• definition of the workplace is also not only limited to the four walls of a building rather it could also be any place visited by the employee during the course of employment;^[17] and
• The Act, further, also defines the unorganized sector^[18] in relation to a workplace It could be a house where a woman who works as a house-help, ASHA worker, Agricultural Labourer or otherwise.

The POSH Act under section 2(o) (iv) extends its applicability to Sports Federations and other governing bodies as employers in relation to sports institute, stadium, sports complex or venues for competitions, hotels, and games villages too.

Further, the POSH Act, has been interpreted to include the concept of extended workplace. In the case of Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University,^[19] the Bombay High Court interpreted the definition of ‘workplace’ and observed that the same should be inclusive and non-exhaustive since the parliament intends to protect women from all kinds of sexual harassment hence, the legislation is open for further interpretation.

Further, in the case of Sanjeev Mishra v. Disciplinary Authority and General Manager, Bank, ^[20] the High Court of Rajasthan after analyzing the facts and circumstances of the case endeavored to include virtual workspaces within the ambit of ‘workplace’.

Status of Online Gamers

The fact that female gamers are also subjected to sexual harassment is not new. When it comes to online gaming, women even resort to hiding their real identities in order to not to subject themselves to harassment and embarrassment. Perhaps this can create a safe space for them to play online games and participate. In order to prevent sexual harassment and safeguard women against sexual harassment, the recourse to POSH Law can be taken.

Considering that online gaming laws in India are in their nascent stage and online games operate in the grey sphere due to lack of central legislation. Though it is difficult to comment on the status of gaming laws and regulations, it would be safe to equate gamers with visitors of the platform or game thereby covering them under the umbrella of POSH Act.

Metaverse and Gig economy

With various gig opportunities that Metaverse has started to offer to people to set up their business online,^[21] in the virtual world has again raised questions as the applicability of workplace and labour laws on the same.

The POSH Act refers to “Employer” as a person who is responsible of ensuring a safe and healthy work environment and who implements the POSH Act in the organization.

As per Section 2(g) of the POSH Act an “Employer” means:

• Government organisations:

Head of the department, organisation, undertaking, establishment, enterprise, institution, office, branch or any unit of government organisation or any officer specified in this regard;

• Private sector organisations/Non- government organisations:

The person or board or committee responsible for formulation and administration of policies of such organisations;

• Any person discharging contractual obligations with respect to his/her employees.

As per the POSH Act, Under the POSH Act, a person supervising or operating the platform can be considered as principal employer therefore, the principal employer must ensure that the safety measures are all taken care of. Metaverse would act as an intermediary that provides a platform for people to earn money through various gigs available. Therefore, if an act of sexual harassment occur in such a situation, liability of Metaverse as an intermediary along with the gaming company would arise to provide the victim with an effective redressal mechanism under section 19 of the POSH Act.

The advent of Metaverse has brought the very concept of employment relationship and applicable laws under the scanner from legal point view the difficulty in establishing the identities of the avatars working in the Metaverse, virtual workspace at a virtual desk and screen.

The entire new dynamics of workplace are under construction at an ever evolving speed. Employee safety and security and maintaining a healthy work environment are again the added concerns that need to be addressed in the virtual spaces as well since Metaverse is just an extension of the real world.

The companies, though have welcomed the move, there is a lot that the organizations must ensure the corners of discipline, work-life balance, healthy and safe working environment and compliance with applicable laws is actively met through out.

There is also the need for the nations to actively address the rising numbers of sexual harassment in the virtual space and legislate on the issue. The European Union, in 2022 passed the Digital Services Act to address the illegal and harmful online content. The act requires the companies to monitor and rapidly take down hate speech or face fine. ^[22]

Authors: Anuradha Gandhi (Manager Associate) and Rachita Thakur (Junior associate) at S.S. Rana & Co. Views are personal.