The metaverse has burst into the technological field in a meteoric way and lawyers are already beginning to follow the phenomenon closely. This is the case of Anne Cousin, associate lawyer at Herald, who accepted this interview. For her, to frame practices in the metaverse, normative levers already exist.
Were you interested in the law relating to new technologies from the start?
Yes, I started by taking an interest in IT and digital law in general. In another life, I could have become an engineer because this field fascinates me. I really like to plead on these issues and all the legal reasoning adapted to the technique in general.
Can we consider that the legislature is still lagging behind technological development? How does he apprehend the irruption of the metaverse?
The legislature is never asked to be ahead and it is not up to the lawyers to invent the technology of tomorrow. Their role is rather to support players in the sector towards better practices. It is not the law that is lagging behind but the human being who needs time to understand all the societal challenges of a technology. The myriad of legal codes on my desk attest that the law is an incredible achievement. It is more a question here of knowing which law to apply than of a legal vacuum!
As far as the metaverse is concerned, we are at the beginning and there are a lot of issues, particularly on the framework of the market and property rights. On the market first, the question will be how our competition law will apply. This is the first question to ask: will we have 50 or only 2 platforms that will dominate the metaverse market? Will Meta and Microsoft be the only dominant players?
It all depends on how these big platforms are going to define the practices in their respective metaverse. For example, will they force users to use a particular cryptocurrency or will they leave the choice?
These questions are very well known in competition law and the French Competition Authority has already conducted fairly detailed reflections for several years on the rules to be applied to better regulate the digital markets. Today, the European Commission has also equipped itself with its own tool to fight against the monopolistic situation of these platforms thanks to its future DMA and DSA (Digital Markets Act and Digital Services Act).
In your opinion, is the law able to keep up with the rapid development of new technologies?
Yes, we have the necessary tools but perhaps not enough efficiency to be able to apply these rules quickly, taking into account regional specificities; this will require the States of the European Union to become more reconciled.
It is therefore at the end of the chain that efficiency fails, but also quite simply because the resources of justice are generally lacking. The experts available to enforce these rules are still insufficient.
Any good lawyer qualifies the available law with his own analysis grid. I strongly believe in the plasticity of law. For example, the law of July 29, 1981 on press law works very well: there have been some changes over the years but this text is now applied to the issue of defamation on the Internet.
We have the French and European legal tools available to fight against the abuses which could occur according to the technical evolutions of the platforms. But it is once again a concern for efficiency: there are many powerful players who do not make the application of the GDPR their priority and that is an understatement. The European CNILs should pronounce more serious sanctions. They have been quite shy on the subject for too long.
Instead of accusing the law of being late, it is better to demand more effectiveness in the sanction. Political and societal will is needed, a kind of global awareness of the dangers that these monopolies entail. Our courts today make decisions that are not the same as those of twenty years ago, precisely because society’s vision is changing. Is this company ready today to condemn Meta or others in the event of non-compliance with the rules in force?
Is the capture and processing of personal data in the metaverse more risky for users?
Yes, the metaverse is more dangerous because it involves even more sensitive data. The avatar represented in this virtual world will look like you and it will capture even finer behavioral data. Need we remind you that Facebook has developed patents to detect the physiognomy and face of consumers to better predict their purchasing behavior? The metaverse will probably amplify the knowledge that a handful of platforms have of our behaviors.
Once again, we have the legal tools to regulate these practices but not enough relays to enforce them. In 2000, we obtained a decision from the judge of the Tribunal de Grande Instance of Paris for Yahoo to stop selling Nazi objects on its platform. But due to a lack of coordination of the judicial policies of the countries concerned, this decision was never executed in the United States.
Isn’t the fact of naming these major platforms more precisely “gatekeepers” in the new texts of the European Commission (DMA and DSA) a sign of great progress on the subject? This has the merit of clearly defining who the targets are to avoid scattering, don’t you think?
Where the Commission has changed the situation in terms of effectiveness is the fact of having provided for relays responsible for verifying compliance with the rules set out.
Under the Digital Services Act, gatekeepers must provide entities with a certain amount of information on their systemic risks, audit reports as well as the presentation of measures intended to limit these risks. This is the first time that we have gone so far in guaranteeing effectiveness.
What legal projects related to the metaverse do you see appearing?
The main unknown concerning the development of the metaverse remains the avatar because lawyers wonder if it should have its own personality or if it simply remains an extension of the human. Can he defame, denigrate, harass, or even steal? These same questions were already being asked a few years ago around robots and artificial intelligence. Under French law today, these technological or digital entities are not considered as persons in their own right, but rather as tools that can make it possible to harm individuals.
There is also the subject of NFTs (non-fungible tokens) and the question of adapting current intellectual property rights also arises. If we want to protect brands in the metaverse, we need to modify existing repositories.
In copyright this time, for an artist to design an Adidas sneaker NFT for example, he will have to obtain the rights of the holder. If this artist wishes to do like Andy Warhol to reproduce iconic brands, he must obtain a reproduction authorization as in the real world. This is a fairly old debate between the freedom of creation and the right of ownership of the author. The author of the secondary work must always obtain the approval of that of the primary work.
Do you see the appearance of specialized lawyers on the metaverse?
I’m not sure we’ll see any lawyers specializing in the metaverse, but it’s clear that digital lawyers are already working on it. It’s a fairly natural extension of what we do on a daily basis.
For my part, I specialize in e-commerce and I support many companies that want to switch their sales online. We help them to comply with the “Platform to Business” regulation, the consumer code, the Digital Services Act… a whole regulatory mille-feuille which also aims to govern the metaverse.
We were faced with questions of the same magnitude when it came to peer-to-peer. Does the fact of illegally sharing a music file between users lead to a reproduction subject to the authorization of the holder? Faced with the rapid evolution of technologies, the lawyer must constantly rethink the concepts with which he works every day.