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Recently, Facebook announced its plans to develop a full-body virtual reality system.  The company aims to create life-like avatars of users to provide for a more immersive social media and gaming experience. These detailed avatars will be brought into VR simulations so that users can play sports or interact with each other in the (digital) flesh. The avatars are intended to be anatomically correct, down to the last detail of muscle and skin. They would further replicate the real-time movements of users, along with their clothing and facial expressions. Though this technology may be a long way from being implemented, it would be prudent to discuss its legal implications because of the threat it poses, particularly to democratic processes.

VR has already raised concerns about privacy and data collection by companies, which can be read about here. However, in this post, the focus is on how Facebook’s proposed technology would help propagate fake news and stifle dissent within a country. The unchecked spreading of fake news, primarily through social media, is currently a major concern for many countries. This has reached the point where there have been multiple instances of people being lynched based on rumours forwarded through Whatsapp. Facebook’s failures to tackle fake news are also widely known, with it not even having fact-checking partners in countries like Hungary. In addition, its algorithm traps users in ‘filter bubbles’ based on the content they had previously engaged with, tailoring their news feed to their interests. Users would then be able to access only the news and other information that conform to their existing views. This opinion-based segregation makes it difficult for legitimate journalism to counter the spread of fake news as the potential for exposure to conflicting viewpoints is greatly reduced.

Virtual Reality would only add to this fake news problem. Ordinarily, people form memories and opinions based on real-life experiences and observations. VR, however, blurs the divide between real life and simulation by immersing users in an experience they perceive to be real. In other words, VR isn’t real but it feels real. For this reason, it can have long term psychological impacts on users even after they leave the virtual world. Facebook’s proposed technology goes one step further by proposing to develop life-like simulations of users and environments. By presenting users with an ‘objective’ reality, it would have an intensive immersion effect that may be used to manipulate the mind, emotions, and consequently, the behaviour of users. Fake news would then be thought of as ‘objectively’ experienced in real life, rather than just on a screen.

In this way, the proposed VR technology can control what users experience and, thereby, effectively sell them a particular message. Life-like avatars of people ranging from politicians to celebrities can be manipulated to propagate a false message or a certain viewpoint. Before long, news events could be simulated using the avatars of news anchors. With Facebook looking to emulate even the user’s body language and body movements, these simulations will be nearly indistinguishable from the real users. This problem is exacerbated when malicious hackers make use of VR to propagate their agenda. For instance, Russia has already managed to interfere with the election of the POTUS by spreading articles on social media. If it subsequently manages to obtain an influential individual’s body-mapped information, it can use such information to manipulate the masses. Therefore, the proposed technology would allow for greater damage to be inflicted upon democratic processes.

With the question becoming what constitutes reality itself and due to the extent of harm that may be caused by this proposed technology, the need for its regulation becomes all the more necessary. Without legal sanctions, one cannot hope for Facebook to remove fake news on its own, especially since it has previously refused to do so. However, any attempts at prescriptive legislation that aim to block content before it is even posted would threaten the right to freedom of speech. This is harmful because it may allow for the censorship of legitimate journalism before it can be cross-verified as real news, thereby impeding the discovery of truth through open discussions. This, in turn, may lead to self-censorship and have a chilling effect on citizens in the country. Therefore, prescriptive legislation should not be used to address such a complex issue.

In the past, governments have not responded adequately to the challenges created by new technology. As a case in point, existing laws in India are insufficient to deal with the fake news problem. Instead of being mandated to comply with positive controls, social media platforms have been provided a safe harbour by Section 79 of the IT Act, 2000. This section protects companies like Facebook from liability for any actions committed by their users unless they are made aware of a particular post on their platform. In addition, the companies are only to observe an ambiguous requirement of due diligence while discharging their duties under this Act. Further, such companies are required to censor content only when directed to do so by a court. Therefore, censorship of fake news could only happen after delayed bureaucratic and legal processes. However, with the quick spread of misinformation, and the intensity of immersion and manipulation by VR technology, this delayed reactive process is largely ineffective.

Due to the inadequacy of current reactive legislation, there is a need for more effective regulation. But, since such regulation can potentially be misused, great care must be taken before introducing laws regulating fake news in democratic countries. This need for caution makes itself more apparent when observing previous attempts to regulate fake news in countries such as Singapore, Germany, and Russia. Singaporean law-makers attempted to deal with fake news by forcing corrections to be added to online content that they deemed to be false. These corrections would not affect the original content of the articles, but would instead add the facts next to the falsehood. But how would this apply to videos with life-like simulations? Moreover, even if textual disclaimers could be inserted into every fake simulation being distributed on all platforms, mere text would not be very effective against the emotional impact of purposefully evocative virtual reality simulations. Further, in Germany and Singapore, authorities have found it difficult to differentiate misinformation and hate speech from satire. In Russia, the government is even allowed to block sites and delete articles with which it disagreed by branding them as ‘fake news’. Therefore, the current restrictive framework existing across the world is largely inadequate and allows for governments to take on authoritarian characteristics.

In this way, regulation may allow the government to become an arbiter of the truth, giving authorities the power to control what is shown on social media platforms. The Netflix series, Black Mirror, has already depicted a preview of this future of VR and augmented reality [AR]. In its episode titled ‘Men against Fire’, it focuses on AR technology that makes soldiers see their ‘enemies’ as aggressive mutants given the name ‘roaches’. In reality, these roaches were just terrified citizens who were deemed to be genetically inferior by the government. By programming them to look like the enemy, this technology allowed the government to make unknowing soldiers key pawns in the genocide. Even though this is a drastic example, it does show how VR in the hands of governments, religious and cultural authorities, etc. has the potential to obscure the truth and further a particular agenda.

Until a more comprehensive regulatory framework that includes checks to authoritarian tendencies comes into force, certain measures may be adopted to improve societal resistance to fake news. Firstly, governments could limit the liability protections offered to intermediaries. Among other things, this may be done by requiring companies to censor fake news on their own or by holding them accountable for the defamation of individuals on their sites. Increased liability may then encourage intermediaries to better screen the content they permit on their platforms. Secondly, companies could be committed to editing any simulated avatars of users in such a manner so as to ensure that they cannot be confused with the real versions. Lastly, the encouragement of media literacy could also be pursued. A project launched in Italy aimed to teach citizens, as part of the country’s high school education curriculum, how to identify suspect URLs or reach out to experts online. This can help citizens themselves become more aware of potential falsehoods.

In conclusion, advancements in VR may allow for videos to be manipulated by changing how real people appear to behave. These fake videos have the potential to lead to inter and intra-state conflicts. In the guise of protecting citizens from such videos, governments may resort to the dangerous weapon of censorship. For these reasons, solutions to prevent the spread of fake news at its outset must be devised, without compromising the right to free speech or devolving the country into an authoritarian regime. Only then would Virtual Reality not threaten the collapse of objective reality.

Controlling the public’s access to the Internet has always been considered the tool of the demagogue. We take it as being par for the course when restrictions are imposed on users in countries such as China and Myanmar, but a ban imposed by Facebook even on members of the far-right sees intense debate erupt over the perceived violation of the recipient’s freedom of speech.

This respect for one’s right to speak his/her mind freely owes a lot to the foundational place that is accorded to the right of free speech and expression by influential charters like the Universal Declaration of Human Rights, and it is clear to see that these freedoms have been extended with equal verve and vigour to apply to relatively new forms of media such as the Internet.

Placed against this background, the adoption by the European Union of the Directive on Copyright in the Digital Single Market is unusual, troubling and even sinister, as the law poses a grave threat to citizens’ right to privacy and freedom of speech and expression, even as it professes its benevolent intentions.

But what exactly does the new Directive entail, and how will free speech be impacted now that it has been adopted? Can the law pass muster if challenged in the Court of Justice for the European Union? What is the prevailing position of law on the issue?

It is these issues that the present post shall attempt to discuss.

I. The EU Directive on Copyright – What is it and how does it work?

The deliberations for a new EU-wide copyright law were opened due to the ineffectiveness of the previous Directive, which was implemented in 2001 and whose provisions were found unsuitable for today’s digital market. While the Directive succeeded in achieving some of its goals its major failure was its complete ineffectiveness on the issue of fair remuneration to content creators, which has contributed significantly to the “value gap” (i.e. difference in revenues) that currently exists between internet companies and content creators.

The newly implemented Directive aims to address this discrepancy through Article 17 (Draft Article 13), which imposes an obligation on intermediary platforms to obtain licenses for the content uploaded by users.

This means that for every video that is uploaded to its platform, YouTube must obtain a license from the uploader, failing which it must ensure the “non-availability” of the relevant video. Essentially, it means that the company loses the right to display content if it fails to acquire a license, and it must therefore ensure that the video is no longer available for public viewing.

The obligation imposed on intermediaries to negotiate licenses with users presents some very obvious difficulties, the most pertinent of which is the immense financial liability that companies will inevitably have to bear.

This is because in order to comply with the law online platforms will have to pre-emptively acquire a license from every single creator for the billions of copyrighted works that are created every day, an impossible task considering that a copyright arises automatically when a new work is created.

All of this ultimately means that in order to escape liability internet platforms will have to install automated filters, which will lead to a handful of companies monitoring content that is uploaded by a vast majority of Internet users across the world.

II. What does the Directive mean for the free use of the Internet?

The current model for dealing with copyright infringements is the notice-and-takedown process, through which intermediary platforms can escape liability when their users infringe copyright so long as they are unaware of the infringement, provided that they also act quickly to remove it once knowledge of the copyrighted content reaches them. However, the new model changes this paradigm by instituting a system where filtering is done before the content is uploaded, rather than in case a violation is reported.

The problem with this kind of filtering structure is that it renders any exceptions to the law completely useless, as even sophisticated algorithms lack the ability to correctly distinguish genuine videos, parodies and memes from actual copyright infringements. The filters would operate in such a manner as to automatically block any work that contains unlicensed copyrighted material, leaving users with no choice but to complain to the intermediaries in order to gain the benefit of the exceptions.

It is this aspect of the Directive that has led to Article 17 being branded a ‘meme ban’, as despite the EU carving out an exception for “quotation, criticism, review, caricature, parody and pastiche”, the use of filters means that there is no way to correctly distinguish whether a given upload is parody or outright infringement.

Furthermore, developing the kind of filters required by the Directive is an extremely expensive process, with only a few companies possessing the resources needed to develop their own filtering software.

This means that while major tech companies will carry on unharmed it will be the small and medium companies that will bear the brunt of the new law, as the compulsion to adopt technologies created by other companies will lead to control of the Internet vesting in the hands of multinational entities such as Google and Facebook.

As Pirate Party MEP and prominent critic of the Copyright Directive Julia Reda puts it, “it is naive to think that this censorship infrastructure will not be used for purposes other than fighting copyright infringement”, which demonstrates the dangers of the amount of control that the law purports to hand over to private MNCs.

Both of the above measures can somewhat be justified if the Directive effectively addressed the prevailing “value gap”, but there is little to no indication that such a move will actually work.

The reason is simple: the immense liability that intermediary platforms face under the new law mean that they will adopt large-scale filtering rather than risk incurring penalties by attempting to negotiate licenses with content creators, which will lead to only large artistes with deep pockets – and not the small creators whom the Directive purports to help – benefiting from the change in status quo.

III. What does current case law mean for the legality of the Directive?

Given the controversy surrounding the Directive it was perhaps inevitable that its legality would eventually be called into question, and so it proved as Poland became the first member state to file a case against the law in the CJEU.

However, this leads us to a question – what is the position of existing case law on the issues that have dominated the discourse surrounding the Directive, namely, filtering and general monitoring of the Internet?

As it turns out, these questions are not new for the EU’s top Court, as it dealt with a very similar matter in the 2012 SABAM/Netlog case. There, SABAM sought a decree against Netlog which would force the company to install a filtering system to scan for potential copyright infringements, on the grounds that users were using SABAM’s copyrighted content in uploading their works.

If this sounds familiar it is because such a measure is exactly what the new Directive contemplates, but crucially, the CJEU in the case held that such a filtering system could not be deemed permissible.

The Court arrived at this decision by finding that such a large-scale filtering infrastructure would violate users’ fundamental right to the security of their personal data as provided by Article 8 of the Charter, as well as their freedom to receive or impart information as given in Article 11.

According to the Court, such a requirement would not amount to striking a fair balance between SABAM’s right to intellectual property and Netlog (and its users’) freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, and it therefore refused to grant the injunction.

The ramifications of this ruling are clear – filtering/general monitoring of infringements has been held to violate users’ right to privacy and freedom of information, and therefore Article 17 of the Copyright Directive stands contrary to the existing case law on the issue of filtering.

Conclusion

Article 17 has clear and adverse consequences for content creators and ordinary users – but existing case law offers opponents a glimmer of hope that the provision will be scrapped before it can be implemented fully.

The blatant violation of users’ right to privacy and the prospect of a few companies controlling the entirety of the Internet has understandably resulted in many fearing the loss of freedom that is so unique to the Internet, and it is clear that content creators will be casualties rather than beneficiaries if Article 17 is allowed to remain on the books.

The need of the hour is to find better and more effective ways of ensuring that creators are compensated fairly for their content, but colonising the Internet, as the European Union has purported to do with its new law, can never be accepted as a solution.

From Terminator to Robocop, Wall-E to HAL-9000, artificial intelligence and fully autonomous machines have been a part of popular culture and science fiction, and with recent technological advances, they are coming closer and closer to a thing of reality which raises a question of what would be the legal consequences of such a development. In practical terms, recent controversies of accidents involving autonomous cars are a useful avenue to explore such a legal conundrum which is sure to be more prevalent in the future.

The very texture of urban life is completely altered when a person cannot look a driver in the eye to judge their intentions, or when a two-ton truck is run by an array of sensors and computers, whose decisions are foreign to human reasoning.

Those in favour of fully autonomous cars point towards the overall improvements to road safety which would be imminent with the advent of self-driving cars. Ninety-four percent of car crashes in America are caused by driver error(speeding and drunk driving among other examples), and both fully or even partially autonomous cars could help reduce that number substantially. Even so, crashes, injuries, and fatalities would not end entirely even if self-driving cars were to be ubiquitous. Overall, eventually, those figures are still expected to number far fewer than the number of people killed in car crashes in the present day.

The problem is that Rome wasn’t built in a day and the introduction of autonomous self driving cars wouldn’t instantly bring about a complete change, but rather in gradual stages as autonomous technology would slowly propagate and expand in the consciousness of the market and society. During that period, which could last decades, the social and legal status of Robocar safety would be judged and questioned against the inadequate and unsuitable existing standards, practices, and sentiments.

Who is to blame? 

In 2018, University of Brighton researcher John Kingston analyzed three legal theories of criminal liability that could apply to an entity controlled by artificial intelligence.

Perpetrator via another – the programmer or the user could be held liable for directly instructing the AI entity to commit the crime.

Natural and probable consequence – the programmer or the user could be held liable for causing the AI entity to commit a crime as a consequence of its natural operation. For example, if a human obstructs the work of a factory robot and the AI decides to squash the human as the easiest way to clear the obstruction to continue working, if this outcome was likely and the programmer knew or should have known that, the programmer could be held criminally liable.

Direct liability – the AI system has demonstrated, of its own independent volition, the necessary elements of liability in criminal law. Legally, courts may be capable of assigning criminal liability to the AI system of an existing self-driving car for speeding; however, it is not clear that this would be a useful thing for a court to do.

If one is to direct that question of liability specifically with respect to car accidents and ask “who do I sue,” a plaintiff in a traditional car crash would assign blame to the driver or the car manufacturer, depending on the cause of the crash. In a crash involving an autonomous car, a plaintiff can be understood to have four options to pursue.

Operator of the vehicle: The viability of a claim against the operator will determine on the level of autonomy. For instance, if the autonomous technology allows the passenger to cede full control to the vehicle, then the passenger will likely not be found to be at fault for a crash caused by the technology.

However, in any situation where you’re expecting the human and the computer algorithms to share control of the car(as is the prevalent form of self driving car system in the present day), it is very tricky to hand that control back and forth. It should be noted that Waymo, the Alphabet subsidiary pursuing driverless technology, has consistently argued against such systems where control of a vehicle is handed back and forth between the driver and the algorithms. The company has instead pushed for a perfected automation technology that totally eliminates the role of a human driver.

Car manufacturer: A plaintiff will need to determine whether the manufacturer such as GM had a part in installing autonomous technology into the vehicle.

Company that created the finished autonomous car: Volvo is an example of a manufacturer who has pledged to take full responsibility for accidents caused by its self-driving technology.

In 2015, Volvo issued a press release claiming that Volvo would accept full liability whenever its cars in autonomous mode and announced that it will pay for any injuries or damaged caused by its fully autonomous software, which it expects to start selling in 2020. President and Chief Executive of Volvo Cars Håkan Samuelsson went further urging “regulators to work closely with car makers to solve controversial outstanding issues such as questions over legal liability in the event that a self-driving car is involved in a crash or hacked by a criminal third party.”

Company that created the autonomous car technology: Companies such as Google who are developing the software behind the autonomous car and those manufacturing the sensor systems that allow a vehicle to detect its surrounding.

Overall, there exists broad consensus that self-driving cars implicate the manufacturer of the vehicle more than its operator. That has different implications for a company like GM, which manufactures and sells cars, than Google, which has indicated that it doesn’t have plans to make cars, only the technology that runs them.

Still, since the law is set by precedents pursued by legal action, other interpretations of self-driving car liability are possible. A different interpretation might compare operating autonomous test cars to taking dangerous or experimental equipment on city roads. There’s an argument to be made that a pedestrian death at the hands of an autonomous car, even one that would have been unavoidable, is no different from a human-driven car with a new, experimental combustion engine that malfunctions and blows up on a city road or interstate.

Product Liability v. Personal Liability

Liability for incidents involving self-driving cars is a developing area of law and policy that will determine who is liable when a car causes physical damage to persons or property.

As autonomous cars shift the responsibility of driving from humans to autonomous car technology, there is a need for existing liability laws to evolve in order to fairly identify the appropriate remedies for damage and injury. As higher levels of autonomy are commercially introduced, the insurance industry stands to see greater proportions of commercial and product liability lines, while personal automobile insurance shrinks.

In a white paper titled “Marketplace of Change: Automobile Insurance in the Era of Autonomous Vehicles,” KPMG estimated that personal auto accounted for 87% of loss insurance in the United States, while commercial auto accounted for 13% in 2013. By 2040, personal auto is projected to fall to 58%, while commercial auto rises to 28% and products liability gains 14%. This reflects the view that personal liability will fall as the responsibility of driving shifts to the vehicle. In addition, with the view that the overall pie representing losses covered by liability policies will shrink as autonomous cars cause fewer accidents.

Availability of Crash Data and Fixing Liability

University of South Carolina law professor Bryant Walker Smith as noted that with automated systems, considerably more data will typically be available than with human-driver crashes, allowing more reliable and detailed assessment of liability. He also predicted that comparisons between how an automated system responds and how a human would have or should have responded will be used to help determine fault.

The challenge in this new ecosystem with regards to fixing liability is that some of the potentially liable parties may also have disproportionate control over the sensor data. There is a risk that one of these parties may alter the data to steer the liability decision in its favour, using the wireless and USB interfaces that vehicles have.

That means we must not only record tamper-free sensor data, but also any interactions with the vehicle, perhaps through mediums such as blockchain technology.

Dystopian End to Public Roads for Private Citizens?

There is an argument that autonomous cars could erode citizens’ rights to the public streets. Given sufficient economic incentive to pursue public-private partnerships between municipalities and technology companies, cities, counties, and states might choose to adopt industry-friendly regulatory policy in exchange for changes to the urban environment.

Eventually, should autonomous cars become widespread, it might become more expedient just to close certain roads to pedestrians, bicyclists, and human drivers so that computer cars can operate at maximum efficiency. It’s happened before: Jaywalking laws were essentially invented to transform streets into places for cars.

Uber, Google, and other influential companies with substantial interests in the field of autonomous driving might see this vulnerability as a sign that it’s time to get more serious about legal protection of their interests and this might be to the detriment of the private rights and interests of citizens with regards to their roads.