Vol. 11.2, September 2007


EDITORIAL


Virtual Victimisation

Early this year, the Dutch Public Prosecution Service issued a press release stating it would seek to have a case tried involving child pornography with virtual images of children. Virtual worlds such as Second Life have apparently boosted pornographic use of (imaginary) children, a development many consider a highly negative one, and the Public Prosecution Service intends to find out whether such use can be defined as child pornography under present Dutch criminal law. Opponents have argued that accepting such a qualification puts the fundamental right of freedom of expression under severe pressure. Which interest prevails: the fight against (virtual) child pornography or freedom of expression? But first a few words on the phenomenon of virtual worlds, more prominently represented in Second Life.

Although some people believe that the Second Life hype is already fading, there are enthusiastic companies and government bodies that daily experience the adventure of a second virtual life. As most may know, Second Life is an Internet-based, three-dimensional world imagined and created by its players (called residents). Residents can create their own virtual personas and identities, wonder around, meet and interact with other residents, socialise as well as create and trade items and services. In fact, virtual worlds allow us to start anew and create a completely new virtual fantasy of the life we would like to live. Not surprisingly, millions are being spent worldwide on new images – corporate or otherwise – or new lives (company, service, product, etc.). In looking at how the new world has evolved so surprisingly quickly, we may also note that the dividing line between the two worlds, physical and virtual, is thinning and fading. In the financial area, for example, virtual money (the Linden Dollar) is exchanged for proper money via eBay. In the online world of Entropia, virtual money paid out can be converted into hard currency and be cashed at special ATM cash points in the real world. It all makes virtual money and objects interesting items for theft and other types of criminality. Criminals are attracted to these online worlds because they offer an open environment that can be accessed and used by almost anyone having adequate Internet facilities. Aside from the problems that such criminal behaviour brings with it, a range of other technical, moral, and legal problems have risen– such as the legal qualification and position of virtual money, legal implications of transactions made by virtual persons, and virtual property. Legal research on the impact of virtual world developments may thus offer challenging opportunities.

In examining the interaction between law and virtual worlds, it must be kept in mind that where virtual and real worlds meet and merge, events and developments occurring in both communities will influence one another. Clearly, this is also happening in Second Life. Before continuing, I would like to refer to a recent book (in Dutch) entitled Mediapolis. Populaire cultuur en de stad (Mediapolis: Popular Culture and the City) in which architect Alex de Jong and lawyer and philosopher Marc Schuilenburg further examine new virtual and physical phenomena that shape and urbanise a city. The most important theme in this book is the thesis that there is no single explanation for these phenomena and that they should be seen as new variations of existing things and objects (television as a radio with a screen, a car as a cart without a horse) and as such reflect the society we know and are familiar with. New phenomena have a specific dynamism and influence and change our present society in a very special way. Also, as far as I am concerned, we should not see the new virtual worlds as a new variation of our tangible world, but as a unique phenomenon in which the effects of virtual and real behaviours and events merge and mutually influence one another.

Having said all this and given the dilemma between the two interests mentioned at the outset of this editorial, I would now like to reflect briefly on one particular legal and sociological challenge that has arisen with the advent of virtual worlds: the position of victims and the effects these new worlds have on the concept of victimisation. During the past years, victims of certain events could count on a great deal of attention in the physical world. There is support not only for the position of victims of crime (violence, fraud, etc.), but also for victims of the abuse of power, human rights violations, and many kinds of disasters and accidents, environmental and otherwise. Law plays an important role in influencing the position of victims within and outside the criminal justice system. The growing body of national as well as international regulatory regimes testifies to the attention being given to victims of crime. I refer here to the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power1 and the Recommendation of the Council of Europe On the Position of the Victim in the Framework of Criminal Law and Procedure2. The European Union published the Framework Decision On the Standing of Victims in Criminal Proceedings.3 On a national level, numerous countries (by implementing the above regimes) have also given victims a specific legal status with rights such as the right to be treated with respect for their dignity, the right to provide and receive information, and the right to understand and be understood.4 It is important, however, to note that the attention to victimisation has not only received legal recognition, but also stimulates the active participation of many disciplines and organisations ranging from a variety of self-help organisations, via normal care and assistance services, to arousing the interest of police organisations.5

We may thus conclude that when someone is considered a victim, they are given a certain position in our society and – under certain conditions – also our legal system. The question then is of course: when exactly is someone considered to be a victim? The afore-mentioned Recommendation of the Council of Europe is restricted to victims of crime, whereas the UN Declaration has a broader scope and also encompasses victims of abuse of power. Within the discipline of victimology it has been discussed whether victimology should restrict its subject matter to criminal victimisation in the formal sense or define it in terms of human rights and thus accept a broader definition.6 Recently, scholars have argued that the scope of victimology should even encompass victims of poverty, natural disasters, and social deprivation.

What about virtual victims? Should people who are ‘suffering’ in Second Life – those who feel they have been victimised by certain events – be considered victims under our legal system? Can the exploitation for sexual purposes of my virtual identity constitute rape or even child abuse? Or to take another example, many insecure teenage girls are unhappy about their real identity and take on a whole new identity in the new virtual world. There is a certain degree of safety in this new identity, so they eventually also find a new and more ideal kind of self-image. In Second Life, avatars (virtual bodies) are seen as more than just glorified Barbie dolls: real people identify with the created figure. For teenage girls (or brave young boys) this virtual identity (partly) helps them to forge their identity. What happens if an insecure teenage girl is insulted, menaced, or even raped by other figures in Second Life and the results of these actions affect the way this girl responds to the physical world? Psychologically, these actions in the virtual world can have real effects (consequences for daily performance, potential traumatic effects, etc.). In short, does created image rape of a virtual body in Second Life result in victimisation? This is not an easy question to answer. Reliable data on the impact of virtual behaviour on real life appears absent. Traumatic events in an online world may possibly have negative psychological consequences for the residents of this world involved. Clear evidence of this hypothesis is lacking, however. Posttraumatic stress disorder (PTSD) is a well-known psychiatric outcome after a crime-related trauma. A large number of empirical studies have shown that people experience various negative psychological consequences in the aftermath of a crime and struggle in coping with these consequences.7 Victim support instruments focusing on assistance or treatment may help a person suffering from PTSD in coping with such traumatic stress or may event prevent such stress from occurring. Whether or not symptoms such as anxiety, loss of self-esteem, anger, and general distress also occur in meaningful ways as a result of in the illusionary world of Second Life has yet to be demonstrated. One may presuppose that an examination of the negative and trauma-related psychological consequences of online residents could show that the emotional impact of events in the virtual world may vary with the type of resident: depending on, for instance, social determinants or age some residents may be more susceptible to online violence than others.

Having said all this, I still find it highly difficult to answer the question posed at the outset of this editorial – which interest prevails: freedom of expression in Second Life or the fight against negative developments such as child pornography and child abuse? What then is the point I would like to make with this contribution? Research on the legal challenges of new virtual worlds such as Second Life has thus far primarily focused on questions related to contractual issues, intellectual property rights, and the legal status of virtual assets (including virtual money). Hardly any attention has been paid to the negative effects of the exposure to violent virtual behaviour – in particular online crimes such as virtual assault, child abuse, and rape – on the psychological wellbeing of victims of this violence in the real world. If research were indeed to show that the psychological consequences in the aftermath of an online crime pose serious problems, what would this mean for our conception of certain behaviour in an online world? Should it influence our position on whether the rape of an avatar – this three-dimensional model being the virtual representation of an Internet user – qualifies as rape under criminal law? Of course, feeling victimised does not always or automatically imply that people thus affected should be recognised as victims under the legal definition of the alleged act; the law would first have to define the alleged act as criminal behaviour. However, our world is perpetually changing. Technology brings about many fundamental changes to our society, one of them being the creation of a virtual world that increasingly (often negatively) affects our lives and behaviour in the physical world. My guess is that in a few years’ time the present distinction between virtual and physical reality will have become artificial. An adequate and timely legal response to this development requires that we now address harmful actions in virtual worlds from a legal perspective. For starters, this should involve reflecting on the scope of the term victim as well as on the implications of qualifying certain behaviour as a criminal act. But the analysis and discussion concerning the implications should not be restricted to the implications regarding the present national and international regulations and the established scope of the term. What I have tried to show is that analysing and discussing the legal implications of virtual worlds and the mutual influence of real and virtual worlds will inevitably entail the involvement of lawyers as well as psychologists and sociologists. In other words, this is not something for lawyers alone. Before we can conclude which role law should play and what changes are needed to our set of legal instruments, we should first get a good picture of the symptoms and effects visible in the inhabitants of new and self-created worlds of identities and attitudes to life. Only then may we adequately respond to dilemmas of the kind sketched at the outset of this editorial.

This Issue

The current issue contains three contributions. The first of these is a paper by Dr. Constantinos Kombos of the University of Cyprus and Maria Hadjisolomou comparing the mechanisms used by the ILO and the EU to combat employment discrimination in pay. The author of the second paper, Chen Lei, LLD candidate at Stellenbosch University, adds to the body of legal learning by discussing the impact of the new Chinese property code. The third contribution is that of Professor Willem Witteveen of Tilburg University, who reviews the visual aspects of law examined in the book Images in Law by Anne Wagner and William Pencak (eds.).

Finally, the EJCL Editorial Board is pleased to announce the publication of the official English translation of the Green Paper on a new Polish Civil Code. It was prepared by Poland’s Civil Law Codification Commission, the Netherlands Ministry of Justice being one of the assisting parties, and authorised by the Polish Minister of Justice. The Green Paper can be read and downloaded here. It can also be found on the EJCL subpages of the Netherlands Comparative Law Association under the name of its editor, Zbigniew Radwanski.

Corien Prins,
Professor of Law and Technology
Tilburg University, The Netherlands



Notes

1. A/res/40/34, adopted by the General Assembly in 1985.

2. R(85)11, adopted in 1985.

3. Adopted 15 March 2001, 2001/220/JHA.

4. For a detailed discussion of the rights of victims, see M.S. Groenhuijsen, “Victims’ Rights in the Criminal Justice System: A Call for More Comprehensive Implementation Theory”, in Caring for Crime Victims. Selected Proceedings of the Ninth International Symposium on Victimology (eds. J.M. van Dijk, R. van Kaam, and J.A. Wemmers), Monsey, New York: Criminal Justice Press, 1999, pp. 85-114.

5. See M.S. Groenhuijsen and R.M. Letschert, “Reflections on the Development and Legal Status of Victims’ Rights Instruments” in Compilation of International Victims’ Rights Instruments, Nijmegen: Wolf Legal Publishers, 2006, pp. 1-18.

6. See, e.g., R. Elias, “Transcending Our Social Reality of Victimization: Toward a New Victimology of Human Rights”, Victimology 10(1/4), pp. 6-25.

7. F.H. Norris, K. Kaniasty, and M.P. Thompson, “The Psychological Consequences of Crime”, Victims of Crime (eds. R.C. Davis, A.J. Lurigio, and W.G. Skogan), 2nd edition, Thousand Oaks, London, New Delhi: Sage Publications, 1997, pp. 146-166.





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