The tort of virtual negligence : a proposition to regulate virtual worlds
No well-established proposal exists for the application of negligence law to hold inhabitants of virtual worlds—avatars and their users—liable for their negligent virtual actions. To address this issue, this essay proposes recognizing the tort of virtual negligence. It is defined using a transsystemic and functional approach that combines aspects of common law, civil law, and public law. Diverging from conventional concepts such as “breach of the standard of care” and “fault,” the tort of virtual negligence proposes viewing virtual actions as decisions that, like administrative decisions, must fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” The foundations of this proposition are that virtual actions are informational constructs and the users’ conscious decisions, that virtual actions are subject to law, and that users entering a virtual world, presuming they are in good faith, should justify virtual actions that appear to fall outside the apparent customs and rules of a virtual world. Virtual negligence is assessed in a two-step analysis inspired by Erving Goffman’s frame analysis. First, virtual actions are “framed” within a virtual world’s customs and rules, and inspiration is drawn from the concepts of “statutory breach” and “statutory fault.” Courts should evaluate the apparent customs and rules of a virtual world and establish a primary framework of conduct outside of which virtual actions are presumed to be unreasonable. Second, users must justify or “reframe” their virtual actions contextually, which is inspired by how the reasonableness of decision-making is evaluated in administrative law. Practical scenarios are discussed to illustrate the possible application of the tort of virtual negligence. While this essay primarily focuses on how to assess the reasonableness of virtual actions, it also addresses the issues of damages, causation, and the jurisdiction of Canadian courts. This discussion provides a thorough and practical framework for the tort of virtual negligence. Finally, the essay concludes by highlighting the potential benefits of the tort of virtual negligence for improving the regulation of virtual worlds, namely that it would provide a flexible tool for assessing the legality of virtual actions and that it would empower users.
Civil liability, Torts, Virtual law, Virtual worlds, Reasonable avatar, Metaverse, Droit virtuel, Responsabilité civile
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