Law in digital systems

Insight #1
Is it possible to commit a crime in the METAVERSE?

GDPR and privacy, criminal liability, contract offences, tax violations, physical and logical security, traceability and accountability, unfair competition and misleading advertising. Individuals and companies will have to learn how to shield themselves from many pitfalls considering their increasingly pervasive online presence. Whether you are a software vendor, a game creator, a service provider of technology and digital space, a service provider, a seller of goods, a dealer or reseller, but also just a consumer, the Web and the digital universe in general can turn very quickly from a great opportunity to a harsh threat.

With the present series, our RSM legal team in Italy wants to offer a clear, pragmatic contribution - without nevertheless being technicians in digital law - to all those who in digital have co-interests or who do not have the possibility of availing themselves of specialized advice in the field of law applied to information technologies.

We would like to talk, as first issue, about the "Metaverse", the most disruptive novelty of the Internet, a space-time dimension, completely unedited and with a strong symbolic meaning, in which the physical world, as we are used to knowing it, dangerously merges and blends with the virtual one. Not surprisingly, among the various legal implications referable to it, it seems interesting to us to analyze especially those of a criminal nature.

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The concept of "Metaverse" is not exactly new. It is a virtual reality that allows the user to be present in a space, a virtual space, with a digital representation of himself (so-called avatar). This "Metaverse” - or, better said, these “Metaverses" considering how 3D virtual worlds are multiplying - has in Second Life a first major metaphorical representation of this new way of conceiving interaction between humans and the digital medium.

The novelty of these new systems lies in the possibility of accessing them also by taking advantage of augmented reality devices, headsets and visors, which can unquestionably make the perception of places, objects and people in virtual three-dimensional environments immersive, transmitting an even more realistic experience to the user. Therefore, what is changing seems to be the mode of enjoyment of virtual spaces and not the primary concept of the tool itself. However, this approach is although sometimes criticized by some commentators as being overly reductive and belittling, failing to grasp the true revolutionary scope of the new technologies.

From our vantage point, this is not meant to minimize a phenomenon that is sure to have a huge impact on, for example, commercial and business services. Just think of the digital stores of the big fashion houses or Nike's Nikeland or even the amazing virtual real estate settings. It is intended here, however, to highlight how, from a legal and, in particular, criminal law perspective, this is an evolution - and not a revolution - that can also be interpreted in the light of already existing regulations.

That said, it is not intended to exclude the future need for ad hoc legislative interventions but, as far as we currently are, proposing a de iure condendo analysis, as sometimes seems to be assumed, appears decidedly premature. In this sense, hypotheses of regulatory intervention must be pursued with caution and care since an extension of the area of applicability of criminal law to the Metaverse poses not only doubts, but real problems (even) of a constitutional nature.

What crimes could be committed in a Metaverse?

A preliminary thought is that there are numerous criminal law provisions that can be immediately and directly applied in the virtual world, raising no specific application and/or interpretation problems. We can then try to hypothesize what are the main offenses that can assume prominence in the Metaverses.

Primarily, it will be possible to configure all those conducts that can typically be carried out through verbal and/or written communication. To better understand, we refer to the offenses that are abstractly verifiable even by telephone, chat or through the use of social networks. Out of all, defamation, private violence, threatening or the crime of persecutory acts (so-called stalking). Again, the contravention crime of harassing or disturbing people could occur.

Crimes of an instigative and/or apologetic nature (e.g., incitement to commit a crime or propaganda and incitement to commit a crime for reasons of racial, ethnic and religious discrimination) or characterized by activities such as the promotion of acts of violence for terrorism (this is the case with the crime of association for terrorism, including international terrorism or subversion of the democratic order^[1]) are also abstractly configurable.  

Again, on this point, jurisprudence has already stated that "integrates the crime of apologia for terrorist crimes, punished by art. 414, paragraph 4, Criminal Code, the dissemination of documents of apologetic content praising the Islamic State or the terrorist activities of Isis, through their inclusion (or sharing) on platforms - or social media - internet, in view of both the nature of terrorist organizations, relevant under 'art. 270 -bis c.p., of the jihadist-inspired syndicates operating on an international scale, as well as the indefinite diffusive potential of this mode of communication" [Italian Supreme Court of Cassation, Criminal, sec. I, Jan. 27, 2021, no. 11581].

In addition, as a general rule, all offenses - or aggravating factors - in relation to which the conduct is carried out "through computer or telematic means" will be able to be configured. In this sense, for example, the law provides an aggravation of punishment for the crime of stalking where it is committed through computer or telematic means. The criminal legislature then provided for the crime of Virtual Pornography^[2] .

As for relevantly severe crimes against the person and, in particular, against minors, one who is responsible, in the virtual world, for the crime of solicitation of a minor may also be punished^[3]. Its literal wording is very interesting: "solicitation means any act aimed at gaining the trust of a minor through artifices, flattery or threats carried out also through the use of the Internet or other networks or media".

Thus, it can be seen that the definitions already widely present in the Criminal Code ("computer or telematic tools", "Internet or other networks or means of communication", "virtual image" referred to in Art. 600 quater.1, Italian Criminal Code), together with the aforementioned cases compatible with a digital context, already outline a regulatory framework of criminal law applicable to conducts that can potentially be carried out in a "virtual place".

This regulatory framework, which will in any case be subject to the scrutiny of the jurisprudence that will gradually be layered on top of it, although unquestionably perfectible, cannot, however, justify certain overly alarmist tones regarding an alleged legal uncertainty that would be brought about by the advent of the "Metaverse".

Concluding remarks (and pitfalls) regarding the extension of criminal protection to the Metaverse

The offenses we have mentioned, without any intention of exhaustiveness, turn out in our opinion to be the main criminal offenses that could assume prominence in the Metaverse. Outside this framework, the extension of the application of other criminal law principles to "virtual facts" that might occur in a Metaverse is considered unlikely. Let us try to explain this with an example. A user of a virtual world through his avatar uses violence against another avatar and therefore, conversely, against another user. Does such situation constitute a criminal offense?

Well, such conduct, in our opinion, cannot constitute a crime or, to be more specific, cannot constitute a crime that would be contestable in the real world (e.g., battery, bodily injury or sexual assault). The rationale is all in all intuitive: it lacks a foundational component of the objective element of the crime, namely, material contact between the subjects and bodily involvement in the conduct. Moreover, no value or importance can in any way be attached to an experience of violence possibly perceived by the victim as real: a kind of metaphysical violence or precisely virtual violence.

The lack of physical contact and of any bodily involvement whatsoever, in the conduct under analysis, appears entirely impassable and indeed it would be most dangerous to attempt to overstep it. This is by fundamental Italian constitutional and Criminal Code principles placed as a guarantee for the entire system: respect for the principles of materiality and offensiveness and the prohibition of analogical interpretation set forth in Article 25 of the Constitution, Article 1 of the Criminal Code and Article 14 of the provisions on the law in general.

Further, in direct derivation of the above and for what is of interest here, it is also necessary to keep in mind the dictate of Article 49 of the Criminal Code - which defines the so-called "impossible crime" - according to which "punibility is also excluded when, due to the unsuitability of the action or the inexistence of its object, the harmful or dangerous event is impossible".

In this sense, it would, therefore, not be possible to assume criminal liability of the user for crimes that require, in the real world, conduct inextricably linked to the materiality and a certain degree of corporeality of the action (nullum crimen sine actione) as well as linked to an identified and identifiable harm or danger (nullum crimen sine iniuria).

In conclusion, the lack of applicability of some Italian Criminal Law provisions should neither alarm nor make one fear the risk of a "virtual Wild West". One must be aware, beyond the applicability, of some criminal law provisions, of the importance of inducing Metaverse operators to prepare clear and transparent regulations and codes of conduct for the use of the service as well as to issue timely specific alerts, for example, regarding the nature of the virtual room to which the user is accessing and the consequent limitations, including age limitations, that may be provided therein for access.

Again, the idea is not new and it is already implemented similarly in other digital contexts (think about the regulations of the so-called forums or, on the other hand, the codes of conduct of online gaming services of game consoles). The attention of national and ultra-national legislators, in our opinion, will have to focus on this aspect rather than on the forecast of ad hoc offenses.