Habeas Virtualis?

I was just reading the blog published by the McLuhan Program in Culture and Technology, appropriately titled What is The Message?. While there, I came across a post by Mark Federman, Chief Strategist and head of McLuhan Management Studies in the program, imploring us to question how our identities (which he terms digiSelves) are constructed, challenged, and potentially violated in digital environments. He concluded the post by asking: "Physically, we are protected in law by habeas corpus ? literally, 'you have the body'. Is our digiSelf protected by habeas virtualis ? 'you have the effect'?"

This reminded me of a conversation I had about sport videogames with a colleague of mine, Dave Parkatti, who was enrolled in the combined MBA/LLB program at the University of Alberta, and is a very sharp tack as well as a good friend. My question/probe and his speculative, thoroughly generous response are posted below:

Imagine a case scenario where a kid is playing in a virtual environment "as" Kobe Bryant. While attempting to "be" Kobe (ie. "assuming" his identity in cyberspace), the kid slips and breaks his neck. Is it possible that the kid's mother can sue Kobe or the game maker for damages? Can Kobe sue if the kid performs some defamatory action while "in" Kobe's cyberbody at an online pickup game? Finally, athletes (I believe) grant their likenesses to appear in videogames. Is there a limit to how far this relationship can go? For example, consider a videogame that wants to add biometric data such as VO2 max and heart rate in order to provide a realistic fatigue simulation: is there such a thing as public information and private information? Or would the franchise own that data when they test the athletes in preseason?

Regarding the sports tort liability topics themselves, they certainly are intriguing. If you want my opinion, the defamation issue is most fascinating.

In the kid-slipping-as-Kobe scenario, one could expect both a defence of consent (kid knowingly & voluntarily assumed risk of sporting/gaming activity) and defence of contributory negligence to possibly come to the aid of a game-maker defendant. It is nevertheless an interesting intersection of product liability cases and sport injury cases; whereas the latter hold no negligence to arise at all on the part of other participants if the injury occurs in the normal course of a game, the former cases do obviously hold manufacturers liable in negligence if they ought to have reasonably foreseen consumers incurring injury through use of their product in the way in question.

Here, though, I think the proper analogy for virtual gaming systems would be roller blades: the product is merely enabling a participant to engage in a sporting activity, and so long as the product itself is not defective by reason of negligent manufacture, the participant's inability to reasonably use that product is their own fault. Of course, what constitutes reasonable use becomes the crucial question, if, unlike roller blades, a virtual gaming system conflates Kobe's virtual abilities with those objectively ascribable to the participant.

In other words, if a reasonable user would be led to think he or she could actually and safely jump higher or move faster than their normal abilities through use of the virtual system, as counter posed to the reasonable rollerblader who knows or ought to know that going too fast for his own skill level is dangerous, then liability may exist for the game maker (subject again, importantly, to the aforementioned defences). As for Kobe however, I couldn't see liability arising for him, barring actual endorsement by him of such extraordinary abilities being made possible through the system.

The question of appropriation of personality in the context of videogames is likewise interesting. As that tort currently operates, a person will always have the legal right to protect against exploitation of their own image, personality, voice, identity, name, etc. so long as such exploitation occurs for commercial endorsement purposes and without that person's consent. Hence, the contractual agreement which contains athlete consent in the context of sport videogames holds as I see it the key to any suit possibly brought by those athletes; if they actually agree to a contract so broadly worded as to essentially include every and all aspects of their "personality", then as a matter of contract law there should be no reason why a game maker couldn't utilize biometric data.

While this implies that private information of personality not included in such a contract is off-limits to game-makers, even then the neat question of a subject-matter defence arises: if athlete personalities come to be no longer seen as selling games as they would Wheaties in a commercial, but rather as constituting the actual subject-matter of a work of art (big case law example pertains to an unauthorized book about Glenn Gould), then Electronic Arts might very well someday be as in the clear as Kitty Kelly is today.

To think of a non-sports example, it is very possible to imagine a legit virtual reality experience based on unauthorized autobiographical information pertaining to Princess Di, where the user could interact with Diana, her actions and responses based on an amalgam of personal information already known to the public or newly extracted from insider sources. Hence while one might think that biometric data is something wholly private in the absence of consent, the paparazzi has shown the private sphere to be fleeting in regard to subject matter information, and if a game maker were to discover that biometric data from an inside team source, then a subject-matter defence would potentially cover it.

This of course does not discount a likely equitable cause of action against the disclosing team doctors or officials, who could be personally liable for breach of confidence or breach of fiduciary duty vis a vis the athlete. These individuals or the team would only "own" such information, and be free to disclose or sell it without liability, if - as mentioned before - they had already extracted a (broad) contractual waiver from the athlete.

As indicated, I think the defamation question regarding virtual pro-athlete experiences is most fascinating. Certainly, it is plausible that the tort could be made out quite easily- take the example of a notorious virtual team of Kobes who are known in the gamer universe as playing with a basketball in one hand and a court-side metal chair (WWF-style) in the other. Such conduct by these players, observable by the gaming public, could be argued to raise an inference in right-thinking members of society generally that Kobe endorses that way of playing, thereby causing Kobe to be lowered in their estimation or shunned.

Aside from actions against the gamers themselves (probably successful but not prone to substantial recovery of damages, or wise from a PR standpoint), the more lucrative action to be taken by Kobe naturally would be against the deep-pocketed game maker, which would have to show that it had no control or responsibility for that specific action of its gamers. If, for example, the experience was programmed such that only Kobe (and no other b-ball persona) could pick up a chair, then the game maker probably would be liable for defamation. If not, though, the game maker is obviously not like an employer and vicariously liable for defamatory actions of its gamers. Also, a whole can of worms exists with respect to mods being developed by hackers, thereby distorting what was intended or made originally permissible by the game maker.

The whole issue is pressing, given that a la Barry Bonds as we discussed, an athlete's reputational capital is oftentimes more valuable these days than his or her human capital/athletic skills.

Many thanks for your assistance, DP.

To return to Federman, the study of the digiSelf is certainly both interesting and crucial, but this is even more true for the study of the fusion of digiSelves.

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