But both governing documents are ineffective at restoring the reputation and financial loss that Second Life residents can experience. Although courts may rely on TOS agreements and other types of governing documents, these documents arguably are crafted to better protect the platform designers than the members of the virtual community. Courts may even reject such agreements to the extent that they impede the economic interests of virtual world participants. If the law has specific rules that apply to real-world instances of defamation, it should similarly apply such rules to virtual spaces to protect the users.
An important question is whether existing law has any significant hurdles that a potential Second Life plaintiff may be unable to overcome. Because defamation law is complex, the following analysis will only highlight two specific predicaments that will arise when a resident brings a claim regarding virtual activity to a real-world court: (1) the "of and concerning" requirement as stipulated in Section 558 of Restatement (Second) of Torts and (2) the constitutional prerequisite of "falsity" in the allegedly defamatory communication.7 That is, the plaintiff must be able to prove that defamation of her avatar is equivalent to defamation of herself, and the context of the statement allows for the plaintiff's cause of action, even though the harm occurred in a virtual environment, because she suffered actual, pecuniary harm. Therefore, to protect the residents and preserve the Second Life economy, a reviewing court must resolve these issues to allow for a justiciable defamation claim in which both parties are virtual world participants.
To prevail in a defamation action, the Second Life plaintiff must first establish that it was she who was defamed and the defendant was the one who caused it, even if the defendant had no intent to defame the plaintiff. A cause of action depends on the identities of the parties. Currently, American law stipulates that any living person and nongovernmental entity that is capable of having a reputation and is legally competent to sue may bring an action for defamation, including corporations and partnerships. Alternatively, any person or nongovernmental entity that makes a defamatory statement and is capable of being sued may be liable.
So, how does an avatar fit into this framework? The definition of internet identity, at least in the context of an avatar's existence, is an ongoing debate among cyberlaw scholars.8 Identities are arguably fluid and fragile, particularly when the possibility of expulsion or banishment from a virtual space is a factor. In some virtual worlds, such as Second Life, an avatar's identity is the intellectual property of the online "intermediary" who administrates the space in which the avatar lives and participates. Conversely, if avatars are deemed to be the intellectual property of the user, then a possible assumption in the context of virtual worlds is that defaming one's property is the same as defaming one's person.
For a Second Life plaintiff to sustain a legal action for defamation, the avatar must be implicitly identified with the user in order for a court to allow the user to litigate on any actionable harm sustained by the avatar. If a court acknowledges this interdependent relationship, it may allow for the recognition of another threshold requirement necessary to establish a defamation action: a reasonable jury must conclude a defamatory statement is "of and concerning" the plaintiff. This question is posed at the onset of any defamation inquiry and is one that is constitutional by nature, as a result of New York Times v. Sullivan.9
The "of and concerning" requirement is quite strict, as "mere similarity or even identity of names [may be] insufficient to establish a work of fiction is of and concerning a real person."10 To determine whether the burden of establishing a link between the statement and the person is met, courts must consider a variety of identifications—all of which are contingent on the facts of each case. Such factors include similarity in name, type of occupation, age, and physical characteristics. That is, when a claimant can sufficiently show a tangible semblance between the claimant and the defamatory reference, she satisfies the "of and concerning" requirement.
Thus far, much of the existing, real-world case law that deals with the "of and concerning" requirement involves situations in which a defendant created a fictional statement that the plaintiff believes to be a defamatory portrayal of herself. Likewise, a human agent claiming that her avatar has been defamed by another agent or avatar will have to prove that the statement against her avatar was clearly "of and concerning" the claimant, and show that the Second Life community would comprehend the avatar and the user as non-distinct bodies. However, given the unique nature of virtual worlds, this may be inherently difficult to prove.
For instance, Second Life allows for "identity tourism," in which a real-world user can experiment with scripting language to create an avatar that looks entirely different from the user. This is derived from the ability of a Second Life resident to determine how her avatar will appear to others. Users may exercise much creativity in creating the avatar, including appearance, names, and other markers: some residents create avatars in direct resemblance of their real-world counterparts; still others create non-humanoid creatures. Accordingly, claimant must prove that despite the differences between the physical characteristics of the avatar and herself, she and the avatar are one and the same for the purposes of a defamation inquiry. Ultimately, this question of sublimating the co-dependent identities between avatar and virtual world user will depend on a reviewing court's legal definition of their relationship. If the court is willing to concede that harming the avatar is equivalent to harming the user, both the party identification issue and the "of and concerning" requirement may be satisfied.
Furthermore, as a matter of constitutional law, a Second Life plaintiff must also establish "falsity" as a prerequisite for recovery: she may not recover in a defamation suit if the statement of fact at issue proves true, even if the statement is made solely for the purpose of harming her.11 Truth of a defamatory statement is a complete bar to all forms of recovery. Equally important is the fact that the First Amendment extends to cover statements that cannot be reasonably interpreted as stating actual "facts" about an individual. Common law has traditionally invoked constitutional principles to shield the use of epithets, insults, and name-calling.
Actionability is also contingent on the notion of privilege, where the defamer may make "fair comments" about a public plaintiff and not be subjected to liability for her speech. In such instance, only if the defamer knows that "the statement is false… or acts in reckless disregard of these matters" will she be liable.12 As a result, Second Life merchants may be subjected to the common law "fair comment" privilege, which protects criticism that chiefly concerns public matters, as they are "manufacturers whose goods are on sale to the public," or "artists," or even "authors" in a more figurative sense.13 For example, Second Life residents who sell their virtual products to other residents generally have "manufactured" their goods using scripting language. Subsequently, if the reviewing court determines that Second Life merchants qualify for fair comment privilege, the merchant must then be able to evoke falsity and prove that the context of the statement nevertheless allows for a cause of action. The court must determine whether the defendant's statement is a "pure" expression of opinion or is based on a provable fact by examining the context and custom of the words in the communication.
Nonetheless, the "context" element of the falsity requirement still poses a significant problem for claims arising from virtual activity. The very concept of creating and operating an avatar is based on the fact that the in-world representation facilitates "role-playing," which is characteristic of virtual worlds. If role-playing, as being essential to virtual world expression, affects the context in which users make statements, then the "defamed" resident must be able to trounce the presupposition that the defamatory statement was theatrical or overtly fictional; otherwise, First Amendment concerns will triumph and bar the resident's claim. Therefore, a Second Life plaintiff must show either that the accused was not role-playing in Second Life or that the Second Life community would believe the accused to not be role-playing. She must further prove that the defendant instead had maliciously promulgated information that unjustifiably tarnished her reputation.
In any event, whether a statement is capable of being defamatory is a question of law, rather than fact. A court must construe such statements by taking into context their pertinent and reasonable meanings. Provided that a court overlooks the arguably fictional context of Second Life and appreciates the critical implications of the types of communications transmitted in the virtual world, a plaintiff may be able to successfully litigate a defamation action. If the courts allow for these causes of action, Second Life residents will not have to rely on the protection offered by service providers through their governing documents and may better safeguard their reputation and virtual-to-real-world assets from the illicit use of language and abuse by users of the virtual platform.
Applying Legislation to Second Life
Eventually, real-world laws, the authorities who enforce them, and other governing structures will spill over into the virtual realms so that activities that occur within these realms may be efficiently regulated. In the meantime, whether Linden Lab or the various communities in Second Life should promote or engage in more rigid self-regulatory policies will always be up for debate unless residents and users of virtual worlds have the option to bring their claims to real-world courts. If judicial institutions can mutually agree to overcome the ambiguities that arise in the application of real-world legislation to the online context, such as party identification and the serious context in which user infractions may arise, the prospects of safeguarding all virtual world participants are positive.
- Restatement (Second) of Torts § 558 (1977).
- See, e.g., Susan P. Crawford, Who's in Charge of Who I Am?: Identity and Law Online, 49 N.Y.L. Sch. L. Rev. 211, 211 (2005) (arguing that "[c]ontrol over online avatar identities will have many real-world consequences").
- 376 U.S. 254 (1964).
- Aguilar v. Universal City Studios, Inc., 219 Cal. Rptr. 891, 892 (1985).
- Restatement (Second) of Torts § 581A cmt. a (1977).
- Restatement (Second) of Torts § 580A (1977).
- 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems 4-66 to -67 (3d ed. 2006).