Criminal law & cyberfantasy

(Delighted to welcome back alumna Audrey Guinchard, who contributes this guest post)

Is virtual reality a fantasy outside the reach of criminal law?
This provocative question about the potential regulation of virtual worlds such as Second Life attracts divergent answers:
► Some consider it an anathema for law to regulate virtual worlds. Their regulation belongs to their creators and owners, not to Governments.
► Others argue that the arm of the law could well extend to virtual words, at least to those that are not games, where participants do not have to fulfil specific and pre-established objectives.

Indeed, some problematic behaviours do sometimes fit in the definition of offences. Fraud is an easy example, and some incidents are reported about people abusing the trust or misrepresenting facts in order to appropriate property or currency that can be exchanged into real-life money, mainly US dollars.

Nonetheless, other offences, like theft, remain difficult to apply to virtual worlds.
Should we then reform the law? Are we putting too much emphasis on something that is hardly relevant for the ordinary citizen?
Given the development of a strong economy in virtual worlds, with, for example, owners and users earning a living out of Second Life, we may want to consider these questions a bit more seriously rather than dismiss it per se -- as I do in my most recent article, "Crime in Virtual Worlds: The Limits of Criminal Law", published last year in the International Review of Law, Computers, and Technology.
Regarding offences against the person and public order, the outlook is different. Unless behaviours spill into the physical world, problems will consist of words and images exchanged and produced in the virtual world between avatars that may never reveal any details of a real-life person. As such, it is difficult to link the images, still or moving, to the physical world, whereas criminal law tends to assume a link between the representation of the person in words and images and the physicality of the world.
And yet, there are evolutions in the law that show an increasing awareness and desire to tackle those issues.

The United Kingdom, for example, decided in the Coroners and Justice Act 2009 to create an offence for possessing non-photographic images of child pornography. Could the offence define as including “the image of an imaginary child” (section 65 (8)) reach the fantasy world of Second Life?

It is difficult to predict how the law enforcement will view the suitability (or not) of the new offence to behaviours in virtual worlds. Moreover, the offence raises important questions of boundaries between fantasy and the real world, questions hardly touched upon in the course of the parliamentary debates. Actually, the debates were non-existent, had it not been for the concerns raised by Parliament's Joint Committee for Human Rights -- concerns that remained unanswered by Government.
Hence, the need for further studies to understand the power of images on oneself, so as to articulate possible responses by criminal law, if responses are needed.

Guest Blogger: Audrey Guinchard

It's IntLawGrrls' great pleasure to welcome Dr. Audrey Guinchard (left) as today's guest blogger.
Audrey is a Lecturer in Law and Director of the LL.B./Maîtrise program at University of Essex in Colchester, England. Before joining Essex in 2000, she taught at France's University of Jean Moulin (Lyon III), from which she earned a Ph.D. in Criminal Law upon completion of a thèse entitled « Les enjeux du pouvoir de répression en matière pénale. Du modèle judiciaire à l’attraction d’un système unitaire » ("The power to impose penalties in criminal matters. From the judiciary model towards a unitary criminal system"). Focusing her scholarship on French Law, Comparative Law, Criminal Law and Procedure, and Cybercrime, Audrey is the editor of the blog Cybercrime at Essex, newest addition to our "connection" blogroll at right. In her guest post below, Audrey describes her analysis of hate crime online, the subject of her forthcoming article in the journal Information & Communications Technology Law (2009).
Audrey dedicates her post to 2-time Nobel Prizewinner Marie Sklodowska Curie (below left) (prior IntLawGrrls posts here and here). Audrey writes that Marie Curie

lived at a time where women did not work in science, certainly not at her level of knowledge and skills. She was Polish, emigrated to France, had to learn a new language, adapt to a different society, and overcome prejudices among male colleagues who, with rare exceptions, just considered she was insane. Yet, her discovery of radioactivity, with Pierre Curie, her husband, changed the world as we know it today. During the first world war, she created the first mobile X-ray ambulances, changing the lives of millions of soldiers whose injuries would have killed them had it not been for the X-rays and the new opportunities they offer to surgeons to try new techniques. If, at the time, the dangers were not fully understood (and Marie probably died of them), X-rays are now a common tool for doctors and at high doses, they are used to treat cancer. It is a well deserved
homage that some European funded fellowships are named after her. She was a pioneer and a true European/international woman, interested in improving people's lives wherever they are and whoever they are.

Curie joins other IntLawGrrls transnational foremothers in the list just below our "visiting from ..." map at right.
Heartfelt welcome!

Hate crimes online

(My thanks to IntLawGrrls for this opportunity to guest post)

Hate crime is part of our history. Europe has been plagued by pogroms as much as by witch-hunting and other forms of prejudices; the United States has not escaped either this violence, nor have countries in Asia, Australasia and Africa.
Yet, the expression “hate crime” has only been recently coined. This development illustrates how much perception of prejudice as a potent component of crime has changed during the last three decades. Hate is not any more a “fact of life”, but a harmful and unacceptable feeling to be criminalized.
Even though hatred is universal, hate crime legislation is not. As I detail in my forthcoming article, Hate Crime in Cyberspace: The Challenges of Substantive Criminal Law, this legislation varies from country to country, reflecting the needs and values of each society.
This diversity in national legislation would not matter so much if hate had not found a new medium to spread and reach others across the borders of nation-states. In cyberspace many media -- e-mails, chats, forums, billboards, websites, blogs -- are used to publish or distribute hateful messages, either to individuals or to groups. (credit for map of the Internet)
Hate crime on the Internet evokes hate speech. Yet, to assimilate one with the other would not do justice to the diversity of behaviours encompassed by the expression “hate crime”.
It is in that sense that a protocol that the Council of Europe adopted on 28 January 2003 -- the Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of Acts of a racist and xenophobic nature committed through computer systems -- is misleading. Hate crime online, as offline, does not focus solely on race. It can target sexual orientation, disability, and, in some countries, like Turkey, social class. More importantly, hate crime is not limited to the dissemination of materials, to threats, insults and denial of the Holocaust; rather, it can encompass a variety of offences. These range from computer misuse (hacking and unauthorized acts impairing or with intent to impair the functioning of computers/networks), to fraud criminal damage (if the offence is not limited to tangible objects as in Britain), to harassment (which often starts online and spills to the physical world). With the emergence of virtual communities or virtual worlds, hatred finds new forms of expression.
Indeed, consider the online, virtual community of Second Life. The Front National, the French political party that defends racist and xenophobic ideas, has an office there. Second Life avatars thus can be subjected to hatred, and by this means the human player can suffer offence, even though the player's avatar may possess a different race, sexuality, religion, etc.
In such a context, how do we capture hate crime? What is to be done about criminal damage, even fraud (one example of new opportunities to defraud is here)?
These are developments that countries will have to tackle.

Write On! IHL & ICC & IT

(Write On! is an occasional item about notable calls for papers.)
The Lieber Society on the Law of Armed Conflict, an interest group of the American Society of International Law, invites nominations for the 2008 Lieber Society Military Prize, awarded annually for "an exceptional writing in English by a member of or person retired from the regular or reserve armed forces of any nation that significantly enhances the understanding and implementation of the law of war." Deadline is January 2, 2008; for details contact ckeever@hawaii.rr.com. Winner of the 2007 prize: Lt. Col. Eric Talbot Jensen, for "Combatant Status: It Is Time for Intermediate Levels of Recognition for Partial Compliance." Winner of the Society's 2007 Francis Lieber Prize, named in honor of the author of the 1863 Lieber Code that proved a precursor for later formulations, including the 1949 Geneva Conventions: Dr. Laura Perna, author of The Formation of the Treaty Law of Non-International Armed Conflicts. Heartfelt congratulations!
Meanwhile, Eyes on the ICC, an interdisciplinary journal produced by the Council for American Students in International Negotiations, is seeking, "from scholars, jurists, diplomats, and professionals," papers and book reviews on "the International Criminal Court (ICC), human rights, public health, children and women's issues, disarmament and development, and nuclear non-proliferation." Here for details.
Finally, Sylvia Kierkegaard (right), information technology legal expert and president of the International Association of IT Lawyers, invites research papers or oral presentations, "on all topics related to Computer law, security and privacy," for its 2d International Conference on Legal, Security and Privacy Issues in IT, set for December 5-7 in Beijing, China. Details here.