Academic journal article Journal of Information, Law and Technology

The European Liability and Responsibility of Providers of Online-Platforms Such as 'Second Life'

Academic journal article Journal of Information, Law and Technology

The European Liability and Responsibility of Providers of Online-Platforms Such as 'Second Life'

Article excerpt

1. The problem at hand

Online platforms such as 'Second Life' are quite a new phenomenon in the virtual world. Although a first version was made publicly available in 2003 and competitors such as 'Active World' released their platforms as early as 1995, it was not until 2006, that 'Second Life' received widespread attention as an online platform. In March 2007 Second Life registered 5 million accounts. 5 million people potentially use 'Second Life' by now to chat with friends, participate in virtual adventures or do business. In April 2007 'Second Life' received its first negative publicity. Participants, so called 'Avatars', had used the online platform to offer pornography, including child pornography, and had engaged in virtual paedophile activities, so called 'age play' between an adult and an infantile 'Avatar'.

Two types of 'cybercrimes' need to be distinguished with regard to this recent scenario. The first type involves real world child pornography. Pornographic content involving a real minor is exchanged or shown using facilities or services of 'Second Life', e.g. via screens in virtual cinemas. In the second scenario, one 'Avatar' has chosen the shape of a child and engages in sexual activities with another adult 'Avatar'. Both 'Avatars' in this case are probably adults as 'Second Life' is restricted to players above 18. Whether the virtual presentation of sexual intercourse with a child amounts to child pornography is disputed among the different jurisdictions. The cases have been subject to permanent debate in the media worldwide. (1) The public was concerned that especially minors were not sufficiently protected from harmful content and could be exposed to pornographic material. The legal debate centred around two main issues: the legal assessment of virtually committed acts, e.g. the rape of a virtual character by a virtual character; and the legal accountability of the provider of an online platform, which provided the framework to engage in such a virtual activity. For the following analysis only the second issue will be of interest. The liability or punishability of an 'Avatar' is a separate issue which does not need to be taken into consideration when determining the liability and duties of the provider.

For the provider of an online-platform, such as 'Second Life', liability could potentially arise from the violation of duties on three different layers:

--The design of the platform: If the design of the platform itself induces violent or sexually explicit activities or permits these activities to be covertly performed, the provider could be obliged to change the design or the structure of the game itself.

--The access to the platform: If an online platform provides violent or sexually explicit content, the access must be restricted to adults only. Providers must install a mechanism, which successfully bars minors from accessing the website or platform.

--The control of the platform: Most of the information presented on a forum has not been uploaded by the provider himself. Nevertheless, as the exchange of information takes place within a framework provided by him, he might have certain duties to control the exchange of information on his platform.

Since the implementation of the E-commerce Directive 2000/31/EC there has been a lot of case law on the nature and scope of the legal obligations and duties of Content, Host or Access Providers. But since online platforms such as 'Second Life' are a new phenomenon which has not yet been subject to relevant litigation, their legal assessment is particularly challenging. The crucial question is: What exactly is 'Second Life'? Is it a chat forum combined with elements of an online game? Is it a multiplayer online game focusing on socialization? Is it a business platform and an online game at the same time? Or is it an entirely new 'virtual world'?

Only after the nature and functioning of 'Second Life' platforms have been defined, the duties and obligations of its provider can be assessed. …

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