Employee safety in the metaverse: Next litigation trend?

As immersive mixed realities, like metaverse networks, become more popular, legal questions are emerging.

One key question: With users in different jurisdictions interacting on one platform, which laws apply?

Another: Can a person who would have sued over an offense in the real world be able to sue if a similar thing occurs in virtual reality?

Some labor and employment attorneys say yes—an answer that comes just as a woman in the United Kingdom shared in a blog post that she experienced virtual sexual harassment in Facebook’s Horizon Worlds.

New ‘virtual reality workroom’

For Atlanta-based intellectual property attorney Shayne O’Reilly, the combination of virtual worlds is already a daily reality.

O’Reilly heads licensing and open source for Meta Platforms Inc., formerly known as Facebook. He said he often dons an Oculus headset to attend staff meetings in the metaverse with his colleagues on the West Coast.

“I meet with my manager within his virtual reality workroom,” O’Reilly said. “There’s a virtual whiteboard and using our handheld remotes on our Oculus devices, we can each walk up to the whiteboard and make notes on the whiteboard.”

O’Reilly noted he can also pair his laptop with his Oculus headset, enabling him to see his laptop screen and keyboard in the virtual environment that is quickly growing in popularity and use.

Following an invite-only beta test, Meta released its virtual realm, Horizon Worlds, to everyone 18 years and older in the United States and Canada on Dec. 9.

But with the rollout, questions are emerging about real-world litigation stemming from virtual environments.

‘Verbally and sexually harassed’

The claim of virtual sexual harassment came from Nina Jane Patel, vice president of metaverse research for Kabuni Ventures, an immersive technology company.

“Within 60 seconds of joining—I was verbally and sexually harassed,” Patel wrote. “3-4 male avatars, with male voices, essentially, but virtually gang raped my avatar and took photos.”

Two months later in February, Meta announced its implementation of four-foot virtual personal boundaries around avatars operating in its Horizon Worlds and Horizon Venues.

“Personal Boundary prevents avatars from coming within a set distance of each other, creating more personal space for people, and making it easier to avoid unwanted interactions,” read the Meta Quest Oculus update.

‘Protect your employees’

Because the metaverse mixes virtual and augmented reality with real-world elements, some attorneys are beginning to pay close attention to the potential for future legal complaints. Legal offenses occurring in immersive mixed-reality realms aren’t off limits, according to F. Beau Howard, a partner at Fox Rothschild in Atlanta.

When prompted with a hypothetical scenario of an employee being harassed at a work meeting occurring in virtual reality, as opposed to the real world, the labor and employment litigator said legal ground existed to bring a lawsuit.

“I think the answer to that question is clearly, ‘yes,’” Howard said. “I don’t think there’s really any difference from a legal perspective of a meeting that takes place in virtual reality versus a meeting that takes place over a conference call or a meeting that takes place over Zoom, or really a meeting that takes place in person from the company’s perspective as it relates to its own employees.”

Howard said if an employee is harassed during a virtual meeting, the employing company has an obligation “to either investigate, if it didn’t observe the harassment, or it has an obligation to do something about it to make sure it doesn’t happen again.”

Given the continual development of the metaverse, Howard said companies interested in establishing a presence within it should consider securing their virtual spaces similar to how they’d secure physical offices, noting employers could still be liable for harassment occurring from third-party virtual users.

“I don’t know how easy it is to lock down your virtual space, but let’s say that it’s possible for people to come in for one purpose or another. You’ve got to deal with the same issues that you have when, say, you have a UPS man or the postal service person or whatever third-party vendor that makes frequent trips to your office, that harasses your secretary,” Howard characterized. “Just because they’re not your employee doesn’t mean that you’re completely off the hook from whatever harassing thing that they might do. You still have an obligation to take some steps to protect your employees from those kinds of things.”

‘Whose law is going to apply?’

Should virtual offenses lead to legal complaints, Howard said he expected the same laws that apply in the real world would apply to virtual violations, but that a gray area may exist regarding jurisdiction. He said potential existed for contractual disputes in which agreements had been negotiated and executed in the virtual realm.

“There’s some interesting questions about, ‘Where were you when you did this? So whose law is going to apply?’ Because where you are when you sign a contract or when you negotiate a contract matters,” Howard said. ”I suppose there could be interesting issues about if you go in and you sign some sort of arbitration agreement to agree to obey the laws of a virtual jurisdiction or something along those lines.”

As the virtual realm continues to evolve, Howard said there’ll be more legal considerations for attorneys to research, but maintained “anything that you can do in the real world, I would imagine you could do in the virtual world. … I don’t see why the legal concepts would be too different.”