An avatar is the online personification of a person’s digital identity, which identifies and represents the person in cyberspace. Given these developments, should we now be thinking about passing specific laws and creating protection for avatars?
In the history of humanity, identity has always been a key basic issue. You cannot take a firm grip on an identity, it tends to shift around constantly, and it raises questions without ever finding the definitive answer. The Temple of the Oracle at Delphi famously exhorted visitors to “know thyself”, to which Plato has Socrates adding: “and you will know the universe and the gods”. The digital revolution and its inexorable powers of abstraction are now bringing about a radical revamp of identification techniques. Identity in the real world becomes digital identity in virtual worlds. In cyberspace, our Internet Protocol (IP) address and our aggregated data determine our presence on the web, replacing our physical bodies.
In her 2009 paper entitled Identité numérique et Représentation de soi: analyse sémiotique et quantitative de l’emprise culturelle du web 2.0. (Digital identity and representation of the self: semiotic and quantitative analysis of the cultural hold of the Web 2.0), Fanny Georges, a lecturer at the University of Paris III, Sorbonne Nouvelle, argues that this new form of identity manifests itself in three ways. First, ‘declared’ identity, which enables people to identify themselves through data which they enter directly, giving full or partial information on their civil status. Secondly, ‘activity-based’ identity, drawn from all the traces people leave on the Web – typically their ‘likes’, preferences and comments. And thirdly, the ‘numerical’ identity which, Fanny Georges points out, “manifests itself in quantifiable variables resulting from calculations within a system”, such as the person’s number of friends, number of groups, etc. This may be described as a person’s overall algorithmic profile.
All this data, which the user leaves behind and is drawn together in compact form, make up what may be called one’s digital identity. As such it is a sort of cross between an identification technique and a self-promotional and marketing strategy. What characterises digital identity and what makes it both very useful and highly complex is the fact that it is intangible, impalpable, essentially disembodied. It is basically an aggregation of information that when brought together comprises a unique, single whole. An identity is after all basically, by definition, something that applies uniquely to that particular person. Today one of the most obvious manifestations of digital identity is the avatar. French philosopher Yves Michaux has written a book – ‘Narcisse et ses avatars’ (Narcissus and his Avatars) – about the changes taking place in our societies as a result of the digital revolution, which sets out to provide “a portrait of our era, its changes, or rather its upheavals”. He suggests that the way in which digital technology has shifted the ground under our feet in social terms is perfectly symbolised by the fact that the traditional idea of identity has now been replaced by a new one, that the concept of an avatar is replacing the notion of identity. “Our lives are no longer centred in the real world, in the machines we use, or even on our screens, they are projected through our avatars,” he argues. But what exactly is an avatar?
Should avatars have legal status?
The term avatar is originally a Sanskrit word denoting a ‘divine incarnation’ – a godlike being arriving on Earth to save the world from cosmic destruction brought about by demons. A deus ex machina. Which is a bit like what we see happening today. We jump into a virtual world and appear as a dematerialised, celestial body in the cyberspace network. We shed our skin, become digitised in the form of a photo, a hologram, a pseudonym, a cartoon character, as another version of ourselves, or as an anonymous character. The term ‘avatar’ was originally taken up by the video games world to denote the way a player identifies with his/her fictional persona, but the concept has since been widened to mean any and every form of self-personification on the Internet.
Anyway, if my avatar is my ‘digital double’ does it have the rights and duties of a legal person which are invested in me? This is what the whole question of avatar rights is all about. Clearly, these new forms of self-representation raise legitimate questions both in the domain of ethics and in terms of property rights and legal protection. To date no legal status for avatars exists. Olivier Iteanu, IT and Intellectual Property lawyer and a Law Professor at the University of Paris I Sorbonne, believes that an avatar will never equate to a person, but merely function as his/her representative. If that is so, the avatar could hardly lay claim to its own legal status. However, Iteanu sees no reason why legal protection could not be given to avatars at some time in the future. He points out that for instance the law has given legal status to fictional persons such as corporations. Clearly, embodiment in flesh and blood is not a condition for obtaining status as a ‘legal person’. Catherine Chabert, a lawyer who specialises in Virtual Reality, equates avatars to graphic design works – creations which fall naturally under Intellectual Property law and more generally under Contract law. According to this argument, an avatar basically belongs to its creator and remains under his/her responsibility as long as s/he does not transfer ownership of – i.e. sell or give away – the avatar under the terms of applicable Contract law.
The difficulty of establishing legal responsibility
While the legal status of avatars remains unclear, the consequences arising from their behaviour are easier to pinpoint. Since avatars are being manipulated by people, they could be used to perpetrate misdeeds online, perhaps under the cover of anonymity. Avatars might also be usurped, hijacked and sold off with very real consequences in the real world. Avatars can for instance be used for spying and abuses of this kind are far from being isolated incidents. The wave of scandals in the Second Life virtual world, an immersive world designed to mirror the real world, demonstrates just how vital it is to draw up a legal status for avatars. In this particular case, the Second Life scandal has highlighted how avatars, and by extension virtual worlds, can be used to implement parallel economies, to spy and to get involved in all sorts of illegal activities such as child pornography and cyber-bullying. In such cases, avatars serve as smokescreens and invisibility cloaks. So how can we guarantee that a given avatar represents the user’s real identity? And what responsibility and accountability should be attached to avatars?
Eric Barbry, a lawyer specialising in computer law, writes on the subject of responsibility on his law practice website. “In order to be made liable, i.e. to be held accountable for damage caused to others and required to remedy it, you must have legal status, plus adequate powers of discernment‟. Now, as we have seen, an avatar has no legal status or legal persona and cannot therefore take on any rights or obligations or be deemed responsible for anything. At the end of the day, an avatar is only a means to an end determined by a human being. Barbry argues quite simply that any and all civil, contractual or criminal responsibility must lie with the person behind the avatar.
A special law for avatars?
However, while the legal system has not so far been provided with any special laws relating to avatars, that does not mean no initiatives to define their responsibilities are underway. Eric Barbry explains that “in the virtual worlds, avatars are appearing in a form that is increasingly independent of their users so that they may be capable of reacting of their own accord to the virtual environment in which they exist and of interacting with other avatars, whether or not their users are actually connected at that moment‟.
This observation opens the way for legislators, or at least the designers of virtual worlds to attribute ‘virtual responsibility’ to avatars with regard to their actions inside the virtual world – i.e. a specific legal provision for a specific world in specific circumstances. Some creators of virtual worlds, such as Second Life, have already laid down in their Terms and Conditions of Use the (non-legally-binding) basics of this kind of responsibility. Eric Barbry foresees that online world managers will set out in their “General Conditions of Use a list of avatar behaviours regarded as unlawful in the virtual world, together with applicable penalties for such behaviour‟. This essentially means establishing parallel laws for virtual worlds, mirroring the laws in force in the real world, perhaps providing also for virtual courts to sentence miscreants to serve a custodial term in a virtual prison!
If this all seems a bit mind-boggling, Eric Barbry argues nevertheless that “the time is right to ask ourselves whether there should be a specific legal framework for avatars so as to assign them a legal persona and turn these virtual beings into legally accountable beings‟. Meanwhile, US online game designer and entrepreneur Raphael Koster has drawn up his own Declaration of the Rights of Avatars, a veritable manifesto calling for laws for virtual worlds. He agrees, for example, with the idea that virtual worlds should be run completely independently from the real world, as a universe apart in which communities must be protected. His Declaration of the Rights of Avatars begins: “When a time comes that new modes and venues exist for communities, and said modes are different enough from the existing ones that question arises as to the applicability of past custom and law; and when said venues have become a forum for interaction and society for the general public regardless of the intent of the creators of said venue; and at a time when said communities and spaces are rising in popularity and are now widely exploited for commercial gain; it behoves those involved in said communities and venues to affirm and declare the inalienable rights of the members of said communities.‟ Written back in 2000, this vision seems to resonate even more loudly today. However, as with legislation on Artificial Intelligence systems, bringing avatars within the confines of the law is not something that is likely to happen overnight.