Recent developments in a discussion regarding human rights on the web are forcing the consideration of a complex set of issues related to virtual worlds.

During our May 20th Metanomics show, Host Rob Bloomfield suggested that virtual worlds, as providers of platforms where content can be created and shared, could be seen as analogous to internet service providers (ISPs). He was responding to a new set of guidelines from the Council of Europe that seek to define the responsibilities of ISPs.

The Council’s Guidelines reflect an effort to apply to ISPs the responsibility of assuring “human rights” on the web. The Council argues that access to internet services is increasingly a prerequisite for engaging in a comprehensive, participatory democracy in an information society. Therefore, by providing the basic infrastructure that allows users to access and use the Internet, ISPs deliver a valuable public service and are in a unique position to promote human rights and fundamental freedoms, and may even have the responsibility to do so.

In a separate set of guidelines applying to games, The Council explicitly ruled out virtual worlds as games arguing that: “such universes only to a lesser degree constitute a programmed experience under the control of a game publisher. Virtual universes also lack a specified gaming scenario and set of goals to achieve.” Rob asked: if virtual worlds are not games, should they be considered ISPs? The Council’s ISP Guidelines do not extend to virtual worlds. But were they to, it could cause some conflict for virtual world companies operating in European territory, as some of the leading providers do not currently conduct themselves in accordance with the Guidelines. Some examples include:

• The Guidelines state that ISPs should NOT actively monitor the content of communications on their networks unless requested to by a legal authority. However, a number of virtual platforms maintain the right to observe in-world communications.

• The Guidelines warn providers against terminating individual customer accounts, which can constitute a restriction on a user’s right to access the benefits of the information society. Virtual world platform providers typically maintain the right to terminate an account “for any or no reason.”

• ISPs are cautioned against removing content, as doing so could be seen as an abridgement of the freedom of expression. However, even in virtual worlds where users are able to create their own content, platform providers commonly maintain the right to remove any and all of it “for any reason or no reason and without liability.” The conundrum is clear— providers are rightfully concerned about being held legally liable for allowing certain types of content and yet removing material too hastily might breach the right to freedom of expression.

But, is it the responsibility of company managers to determine what constitutes a legal and socially acceptable expression? Who is best positioned to gauge whether content is illegal or could exacerbate social tensions or incite violence? The Guidelines suggest that courts are best suited to determine this. However, given the pace at which actions are brought before the judiciary, offending material could remain in the public sector for years before being submitted to legal oversight.

How, then, can fundamental rights be protected in virtual worlds? Most virtual worlds remain stand-alone services existing on a single company’s server bank with users opting-in. The platform providers are the primary authority governing in-world activity, and there is currently no comprehensive effort to submit virtual worlds to regulatory oversight similar to the Council’s ISP guidelines or FCC regulations of U.S. broadcast media. Linden Lab, for instance, relies on community standards to assure socially acceptable behavior in SecondLife, however preserves in its Terms of Service the right to intervene in any manner it sees fit.

Services or Places? Some alternatives….

Some have argued that virtual worlds could instead be considered “places” for the purpose of legal analysis. In their white paper, “Protecting Children and Virtual Worlds,” Robert Bloomfield and Benjamin Duranske propose that if virtual worlds are defined as places, they could then also be considered communities. This would form the basis for the legally-recognized concept of “community standards,” which dictate accepted social norms, and which courts are authorized to uphold. Within this framework, users of virtual worlds would at least have legal redress for censorship by the platform provider. But, even if users did have redress to the courts after-the-fact, there would be nothing to prevent the initial grievance. Also, as virtual worlds will potentially expand to encompass the full scope of the internet, whose community standards should apply in a place inhabited by an international community—the standards of rural America or of urban Japan, the standards of Linden Lab or of The Council of Europe?

David G. Post and David R. Johnson in “The Great Debate—Law in the Virtual World,” also argue virtual worlds should be considered places and as such, should be considered sovereign territories that allow participants to oversee their own affairs independent of terrestrial authority. However, it is highly questionable whether it will be possible to create new legal frameworks of international cyber law independent of terrestrial law. And even if a separate framework could be developed, the question of how the community would enforce the law remains.

As with so many issues involving nascent virtual worlds— the protection of intellectual property and economic rights, security, privacy and free speech—determining who should be held responsible for assuring these fundamental freedoms remains a disputed question.

Article by Sterling Wright, Government and Policy Correspondent