Virtual reality is more lifelike than ever before — not only can users see and hear the virtual world, but they can now feel and smell it too. Two major industries embracing this technology are gaming and mental health treatment. In both fields, the ability for users to immerse themselves in the experience furthers the ultimate goal of the experience: engaging with the game on a first-person level or benefiting from personalized, interactive therapy. In gaming, a 360-degree view of the virtual world adds to the sense of suspended reality and provides a more entertaining experience. In mental health therapy, virtual reality is used as immersive therapy for certain phobias, PTSD, and dementia.
Despite the potential benefits for entertainment and therapy, virtual reality is ripe for abuse. Developers decide what images and experiences the virtual worlds will contain and dictate how users can interact within these worlds. One female gamer wrote about being virtually groped, after another gamer suggestively motioned toward her. The woman was wearing a VR helmet, and did not feel physical contact, but she still saw and heard the other person. Of the experience, she wrote, “Of course, you’re not physically being touched, just like you’re not actually one hundred feet off the ground, but it’s still scary as hell.” This is likely to become an even greater problem as more gamers wear full body suits that will allow them to feel the virtual world and interact physically with other gamers. Without any regulations guaranteeing consumer protections, this kind of sexual abuse in the world of virtual reality could also extend to mental health therapy.
Much of the discussion surrounding precautions has centered on the gaming community. Activists have called for developers to program out the ability to harm other users, to allow users to block each other, and even to restrict the ability to get closer than one foot away from any other avatar (a user’s video game figure). This may work in large scale games, but what about when these harms are suffered in smaller contexts or in smaller worlds, such as those used in therapy? There must be another level of protection for users.
Tort law may provide an avenue to bring a claim, but this would be a difficult route. The fact that users may be in different states or countries creates jurisdictional problems. Beyond that, to satisfy a traditional prima facie battery claim requires actual contact. This presents a problem with virtual groping where a user is only wearing a headset. Even if a victim felt the contact through a VR suit, however, courts still may not find a battery because the perpetrator’s touch was through a computer. On the other hand, a violation in virtual reality feels real to the victim. The victim may experience pressure through a virtual reality suit, but even without a full body suit, gamers report that the experience is real enough to be emotionally scarring. Furthermore, it is easier to prove violations in the virtual world than the physical world because there is a recording. Any person or court can re-watch the experience, with no doubt about what happened.
The tort of Intentional Infliction of Emotional Distress (IIED) may hold some promise for potential claimants. A claim of IIED requires: (a) a defendant act, (b) the defendant’s conduct is outrageous, (c) the defendant acts for the purpose of causing the victim emotional distress so severe that it could be expected to adversely affect mental health, and (d) the defendant’s conduct causes such distress. Out of these three elements, the most difficult to prove is likely (c)—proving the perpetrator’s purpose was to cause distress and the expectation of distress could prove difficult in the context of virtual reality. Some commentary on the earlier example of virtual groping dismissed the writer’s experience because of gaming culture. This treatment of female gamers is not surprising given the misogyny apparent in gaming culture, but this not reason enough to dismiss the problem. Courts may also push back against an IIED claim in virtual reality cases because gamers have the ability to take off their headset and disable the game, removing themselves from the experience. This establishes a level of control for a gamer that victims in the physical world do not have.
Virtual reality is developing quickly and the legal field must keep up. The time to discuss repercussions is now, as the technology develops, rather than once the problem has gotten out of hand.