Deliverable D7.2: Scoping Report on the Legal Impacts of BEAMING Technologies

7.2 cover_0.jpg

BEAMING is a entirely new method of communication and interacting, and as such would appear to potentially raise new legal questions. This Deliverable (D7.2) is a detailed scoping report, which is inteded to examine some of the most important legal issues that could be raised by the use of BEAMING technologies in the EU.

The report is primarily written to engage with, and provide support to, the other partners in the BEAMING consortium. It is expected that this deliverable might have important implications for future workpackages in the BEAMING project, in so much as that the technology may be developed with relevant legislation in mind. It gives suggestions as to where suitable safeguards might be introduced, first and foremost in terms of legal compliance, but also with the public acceptability of users and the public in mind. It is also anticipated that this report will advance debate across a large number of legal and regulatory actors in the EU, and further afield, as to some of the key legal implications surrounding BEAMING. It is also expected that any conclusions that are reached could also be significant for lawyers, judges, national authorities, as well as for other international forums such as the United Nations, who might also be considering the legal implications of next generation presence technologies.

At the current time there is no specific legislation in the EU (or anywhere else) expressly covering the use of BEAMING, or presence technologies. The law is by its nature reactive and will nearly always be a few paces behind technological developments. Whilst there is no specific legislation covering BEAMING, there are many laws which directly or indirectly apply to its use. However, some of the issues raised by BEAMING potentially cause legal difficulties, in that they were not originally designed with this technology in mind. Because of this, in some circumstances current laws might have to be adjusted to cover its use, or new laws might have to be developed if society/governments either want to protect users, or alternatively do not wish to inhibit the use of BEAMING technologies.

The question as to how the legal principles that are in place will apply to BEAMING, or other presence technologies, has been subject to very little sustained academic or judicial analysis thus far. This is not unsurprising because BEAMING is essentially a new technology which is at an early development stage. Therefore, it is not going to be entirely possible to predict the precise impact that BEAMING technologies might have in EU legal systems in the coming years. Original analysis is given in this report in relation to its possible impact, when operational, on many different areas of law – including its use as evidence in court, criminal law, contract law, privacy and security, provision of services and intellectual property.

It is not yet clear what types of digital data might be recorded or stored when using BEAMING, but any data generated could in the future be invoked as evidence in a legal action. When technological evidence is used to prove a case, lawyers pay very close attention to how the data has been collected and managed. A key issue for a court is trusting the source, and ruling out that the information may have been altered in a misleading fashion. Anyone relying on BEAMED data would not want there to be misunderstandings in court as to its authenticity or security, so BEAMING service providers need to consider in advance how best to best manage digital data. In this regard there are international standards, which if followed could give lawyers and judges greater confidence in the use of the technology.

BEAMING, differs from other communication tools because it can make the experience of ‘being there’ seem more real, as well as injecting a physical element to interactions for the first time. Whilst these are key seeling points in distinguishing it from comparative technologies, such opportunities for new forms of anonymous contact via the internet might raise issues of public acceptance, particularly in relation to how criminal law might offer protection to users. Whilst some crimes can be committed at a distance, this is not true of all of them. The answer as to which laws can, and which cannot, depends on the drafting language in each individual piece of legislation, the elements at the heart of the criminal offences, and how those elements accommodate, or not, the offence being undertaken via BEAMING. Some criminal laws might have to be re-examined and redrafted to adapt to the new opportunities for criminal behaviour presented by BEAMING. Changes might also be needed to police structures, to make sure that law enforcement bodies have the skill levels to deal with augmented reality crimes, committed remotely.

Providers wishing to offer BEAMING services should also consider having some systems of industry self-regulation and governance strcutures in place at the outset. Contracts with users of the BEAMING service could place restrictions on abusive behaviour or some forms of unacceptable conduct, with the ability to cancel/suspend licences if necessary. This might give users greater protection from certain activities that whilst are not ‘criminal’ per se, could impact on their use, enjoyment and confidence in the BEAMING service.

It would seem that there are no rules against contracts being concluded using augmented reality, or other forms of presence technologies, and that an avatar could in practice act as an agent for a person. However, for a contract to be effective in law it would have to be shown that the avatar/robot had signalled their intention to want to be bound by a contract. The use of smart technology, whereby the human is no longer involved, and the fact that a BEAMED avatar can display a degree of pre-programmed humanistic intelligence, would seem to introduce some uncertainty into the process of contract formation. It seems likely that a court might find that even the most sophisticated software would not make autonomous decisions, so they would have to consider why the avatar/robot was programmed to react in a certain way, and on whose behalf this was. As automated declarations of offer and acceptance are therefore potentially valid in contract law, this casts doubt as to whether a business person would want to risk having a robot/avatar operating in automated mode to be their ‘electronic agent’. Utilisation of an automated mode might not, however, present as many legal difficulties when used in a social context or for attendance at a conference.

BEAMING would appear to raise privacy concerns beyond those that arise in existing communication methods, because video, acoustic, physiological, haptic and kinematic data can all be transmitted digitially. The physical capabilities of BEAMING also suggests that it is possible that data of an intimate kind, or sensitive medical information could also be revealed. Privacy protection is, therefore, something that could be a very major influence in the success of BEAMING. A user could potentially claim an interference with their privacy rights if they considered there has been some form of breach under legislation protecting human rights laws. This would rest on the individual facts of each case and a court would to have to consider whether what had taken place was indeed intrusive, and the impact this had on the BEAMING users enjoyment of their privacy rights. Generally, a claim in this regard is more likely to be sucessful if a private meeting or interaction was hacked into, rather than something which occurs in a public virtual space.

There are similarly challenging legal questions relating to privacy protection under the laws of trespass and appropriation. Potentially, a user might be able to transport themselves anywhere that had BEAMING enabled capabilities, and in some cases this might be univited. It is unclear whether a BEAMING user would commit a trespass in law because there would appear to have been no ‘physical’ entry onto land. Similarly, it is arguable whether complainant of the trespass can  ‘occupy’ or ‘exclusively posses’ a virtual space (even if the BEAMING provider has declared it a private and secure space or connection). A further possibility of legal action could be if someone takes control of another’s avatar and pretends to be them, or if someone creates an avatar that would appear to be modelled on another individual (so that others might think it was then). Whether such appropriation rights can extend beyond humans to avatars, is a question that does not seem to have been explored by lawyers thus far. A court faced with either a claim of trespass, or appropriation, in the context of BEAMING, would have to stretch traditional legal concepts and the application of legal precedents to issues involving similar, but ultimately different, questions of rights and obligations.

BEAMING technologies will undoubtedly involve some computer processing of information relating to an identiļ¬able person, and will be subject to data protection legislation. This means that the BEAMING service provider or data controller (i.e. anyone who was some form of control over the data) must guarantee any BEAMING users that they will safeguard the protection of personal data in accordance with the Directive. They will be required to inform individuals the reason why the data was collected, the identity of the data controller and recipients of the data, and the specific rights that data subjects are entitled to. Special rules apply to sensitive data, such as medical data.  It would seem sensible for providers wishing to run BEAMING services to have developed data protection policies at the outset, and seek to make the data processing legitimate by obtaining the users consent to the processing of the data when they agree to the contract of services.

BEAMING could have a commercial use in providing services in the health, education and business sectors. BEAMED services could in the future be offered by an organisation, or individual, in one EU Member State, to take place across borders in another country. EU Member States are generally encouraged to allow a free internal market within Europe, and any restrictions on the freedom to provide services across borders within the Community is strictly prohibited. However, the Union and Member States have shared competence over healthcare and medical services, meaning that individual Member States have a certain amount of national discretion as to their own policies and how they can choose to act. Therefore, it is possible that one country might chose not to allow BEAMING services to be used within the education or health sectors in their country. More likely is the fact that legislation might be drafted so as to prohibit its use. The European Commissions’ recent review on telemedicine in the EU revealed a number of instances where this was the case. Cross-border services in these areas can also be complex, because each country has its own systems of licensing, accreditation and registration of professionals in the health and teaching sectors.  BEAMING can in many cases be undertaken in the EU, it will just require resolve and patience in overcoming national administrative procedures in the country that the user will be BEAMED into.

BEAMING raises a number of legal points connected with Intellectual Property Rights (IPR). If the BEAMING consortium are planning to develop all, or part, of the technology on a commercial basis then they should seek to rely on IPR protection, so they can own their ideas and benefit from future licencing. A more interesting legal question concerns the issue of who owns any creative ideas or virtual products that are generated within a BEAMED network? There are questions as to who actually owns the avatar that is created to represent an individual, and if the avatar creates something online, there could be questions as to how these rights will be managed and who will manage and enforce such IPR rights of digital contents. The companies behind virtual world gaming have already had to develop polices to respond to such questions. A further important issue could responsibility for any third part breaches of IPR over a BEAMED network. This would apply where, for example, an avatar, or group of avatars, reproduced a theatre play, this was unlicenced and was IPR protected by a living artist. It could be sensible for BEAMING providers to develop a policy on third party breaches of IP rights in advance of using the technology and incorproate liability disclaimers into service contracts with BEAMING users.

AttachmentSize
D 7.2-BEAMING Deliverable 7.2-FINAL.pdf1.98 MB