Imminent Litigation Challenges of the Metaverse

Blakes | Karine Russell and Christopher DiMatteo | Nov 23, 2022

Image Unsplash Javier Peñas virtual reality - Imminent Litigation Challenges of the Metaverse

Image: Unsplash/Javier Peñas

While a virtual-reality parallel universe is likely several years away, entirely new areas of law have developed to address the online world. Cyberattack or data breach class actions have become common.

  • Privacy litigation:  If the metaverse develops as anticipated, it will involve the collection of an unprecedented amount of data about users. Platforms could (as they do now) collect data about what users buy in the metaverse, what they look at, and their conversations with other users. However, because a user’s access to the metaverse would be through a headset, much more data could be collected – for example, relating to user movements, physiological responses and perhaps even brainwaves – that will give platforms a deeper understanding of their users’ thought patterns and behaviours.
    • Tort of intrusion upon seclusion where a defendant intentionally intrudes into the plaintiff’s private affairs in a manner that would be highly offensive to a reasonable person.  In addition to a data breach scenario, it is possible to envision other metaverse cases of intrusion upon seclusion. If it is possible to buy virtual real estate in the metaverse, for example, a defendant could be liable for snooping in a plaintiff’s virtual home.
    • Could a metaverse operator be liable for negligently failing to prevent a cyberattack that resulted in the compromise of user data?
    • If a metaverse user breaches the privacy of another user, could the platform be liable for failing to prevent the breach?

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  • Product liability: The metaverse is projected to result in a vast market for virtual and physical products available for purchase and use by customers.  Accordingly, developers, manufacturers, licensors, vendors and others in the industry may be at risk of metaverse-related product liability claims brought by metaverse participants and users of these products.
    • claims could result from scenarios where individuals sustain personal injuries while immersed in the virtual or augmented reality of the metaverse world
    • property damage or economic loss claims could arise where participation in the metaverse or use of related hardware gives rise to an incident that destroys property.  Metaverse users may also be sued by other users for their conduct in the metaverse as it relates to another person or avatar.

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