The law on harassment, discrimination and privacy of workers is well established online and in the office. But applying these rules in the metaverse will still raise some novel risks and challenges
For technology enthusiasts, the advent of the metaverse – an expanding 3D virtual universe where you experience a digital life as an avatar – appears to mark the next big step in the internet’s development. However, in the employment sphere, an evolution and expansion of existing legal principles is more likely than a complete overhaul of the status quo. Below we consider some key areas where existing employment law concepts may find interesting new expressions in this emerging virtual world and explore how employers can protect themselves and their staff.
Harassment and discrimination in virtual spaces
As a general rule, employers are liable for the discriminatory actions of their staff towards colleagues unless they can show they took all reasonable steps to prevent the act from occurring. The nascent metaverse has already been plagued by allegations of e-groping and other inappropriate conduct. In any virtual context, this behaviour is both clearly unpleasant for the user affected and poses problems for employers seeking to utilise digital spaces. Employers should consider whether harassment of a worker’s online avatar could amount to actionable harassment in the real world for which the company could be liable.
To suffer a “detriment” under the Equality Act 2010 (the EqA), it is enough for the individual to have a reasonable sense of grievance about the treatment they received. Employment tribunals are unlikely to be sympathetic to arguments that metaverse issues are only confined to digital spaces and experienced by avatars. As such, it would be surprising if interactions in the metaverse were not treated as merely another form of online communication and interaction with tangible effects on persons in the real world. Indeed, under the EqA, it is the effect, and not the means of delivery, that is often most important – for instance, the EqA definition of sexual harassment does not require physical contact, only “unwanted conduct”.
In the metaverse, where the appearance of an avatar can be selected by a user, must the avatar and individual share characteristics to be able to complain about poor treatment? Not necessarily. Under the EqA, direct discrimination and harassment can occur in respect of a “perceived” characteristic, which means an individual does not need to have a protected characteristic to have suffered actionable discrimination or harassment. It is sufficient for the perpetrator to simply perceive the victim as having the relevant characteristic. In fact, employment tribunals have made findings of discrimination in this context even where the perpetrator was fully aware the victim did not possess the protected characteristic. In short: the use of avatars in the workplace potentially widens the scope for discrimination by perception to occur, even where employees know their colleagues’ avatars differ from their physical selves.
Coding for conduct
In the event of harassment or discrimination, what must an employer do to show it had taken reasonable steps to prevent wrong-doing? Expectations about respect and tolerance between employees should remain the same regardless of whether new interfaces or means of communication are used. Existing policies governing conduct should apply also to interactions in any virtual workspaces, albeit with any necessary amendments, and the need for implementation and training on such policies should remain largely the same.
Employers may also consider regulating which parts of the digital universe an employee can access, akin to the use of safe search and other filters currently deployed to regulate internet usage in the workplace. It is conceivable an employee would wish to use the same avatar in a virtual workplace and outside of working hours. As with existing social media policies, companies looking to use virtual workspaces should consider how extra-curricular activities carried out by avatars who can be identified as employees of an organisation might reflect on the reputation of their business, and how these risks may be managed.
In the current iteration of the internet, platforms are typically monitored and regulated by moderators who review and, if appropriate, remove content and users. Often this only happens reactively once discrimination or harassment has occurred and requires the victim to come forward with a complaint. The development of the metaverse presents a potential opportunity for a more proactive approach to addressing discrimination and harassment. This raises the question as to whether employers should require more of the digital universe currently under construction and those service providers looking to build virtual workplaces.
Following the complaints of inappropriate conduct mentioned above, in February 2022 Meta introduced a “Personal Boundary” feature in its Horizon Worlds online virtual reality videogame, which created a two-foot virtual bubble around individual avatars. In a similar way, minimum standards of behaviour could be coded directly into virtual workspaces so that avatars are prevented from using certain language or other conduct breaching an employer’s policies.
The black holes of the metaverse – disadvantage and data
The metaverse presents opportunities for employers to provide a virtual workplace where employees can meet and interact – the next evolutionary stage in remote and hybrid working. However, it can also bring challenges for employers, over and above the liability risk for the actions of staff or other individuals.
In a virtual workplace, the appearance of an avatar depends on the characteristics chosen by its real-life counterpart. A failure of a service provider to include a representative array of skin tones or hairstyle options may acutely impact some employees’ ability to create an avatar that they consider accurately represents them.
There is also a question as to whether requiring employees to use the metaverse for work would itself cause a disadvantage for those employees who would find it more difficult to engage in a digital workspace. Employers should require their service providers to consider reasonable adjustments that might need to be made for disabled employees – progress in the world of videogame development illustrates ways in which this is possible in terms of both hardware and software.
Finally, use of the metaverse presents challenges for employers from a privacy perspective because eye-tracking tools within headsets unavoidably collect biometric data. This surveillance is necessary to allow employees to engage in the metaverse, but consent to the collection of this data can only freely be given if individuals have a genuine choice in whether to use the technology – similar to the situation with facial recognition technology to log on to a laptop or the use of fingerprints to enable access to premises. It is far from necessary at this stage to require employees to use a virtual workplace. In any event, relying on employees’ consent to collect this data is problematic because of the power imbalance in the employment relationship.
Additionally, eye movements and other physical motions can also result in the collection of significant data, some of which is very sensitive, such as health data. Eye and gaze tracking can reveal a great deal about the subject at a subconscious level – for example, pupil dilation can reveal areas of focus or intensity of interest. Gaze tracking can also reveal underlying neurological or behavioural patterns, and in some circumstances may be able to uniquely identify individuals. Information about preferences or time spent in activities may be less sensitive than underlying health data or biometric data but is nonetheless extremely valuable to advertisers and therefore vulnerable to collection. Employers need to be alive to this and consider the impact on their obligations as data controllers in this digital universe.