The new privatised frontier: Meta and the privatisation of public power
Facebook has recently changed its brand to Meta – a metaverse company. In a much-hyped announcement, Meta CEO Mark Zuckerberg noted, “The metaverse will not be created by one company. It will be built by creators and developers making new experiences”.
A Metaverse is an online gathering space in which users can perform real-world activities through avatars. The concept was introduced via science fiction, but today’s examples include Decentraland, Fortnite or Cryptovoxels. Microsoft and Nvidia have already been working on their own projects, and many more are considering it. In those spaces, users’ avatars can create their own digital worlds or spend time in existing ones. They can buy plots of land using cryptocurrencies, acquire artwork (mainly through NFTs) and more. These experiences follow a long trend in online community interaction that mimics real-world experiences, such as Second Life or the Sims.
From a legal perspective, metaverses present numerous exciting questions. They range from basic questions of contractual efficacy and property, to free speech, to criminal activity such as money laundering. For users, they also represent genuine social and economic opportunities, besides a respite from real-world hardships.
This post focuses on one specific set of legal challenges arising out of metaverses: how private actors are increasingly controlling the standardisation and enforcement of digital rights. I call it the privatisation of public power.
The origins of the privatisation of public power
In the 1990s, law and technology scholars clashed heavily on the role of the state and private power in regulating the Internet. When the 2000s came, however, the Internet became corporate, then social, then ubiquitous, and states and people accepted it as such. The debate over whether the Internet should be publicly or privately governed (and what these terms mean) went dormant for more than a decade. Meanwhile, the Internet became ever more privatised, but not as cyberlibertarians wanted. It became concentrated around a few companies, not scattered across the millions of communities libertarians had anticipated.
The EU contributed its share to this privatised version of the Internet. At the norm-setting level, it fostered privatised self-regulation like Codes of Conduct, while at the enforcement level, it supported privatising the balancing and enforcement of digital rights.
First, the Commission incentivised private platforms to define the rules of the game. In crucial matters like hate speech, disinformation, or fighting counterfeit goods, the Commission viewed self-regulation as the best regulatory approach. Platforms should shape the Internet via their terms and conditions and community standards. They should be nudged, not forced, to protect the Internet.
Second, the Commission mimicked American actions to create systems where online platforms could be exempted from liability for their hosted or indexed content. The idea was simple: it was unwise to kill the messenger if one wanted lively exchanges of ideas. The EU, in good faith, took it one step further. If online platforms were notified about illegal content passing through their platforms, they should act on it. A sort of Peter Parker liability mechanism arose: With big power, came big responsibility.
However, there was an unintended consequence. The Commission had just asked online platforms to perform a public mandate. That mandate meant that online platforms had to ensure the protection of our digital rights. They should constantly balance conflicting values such as freedom of expression and incitement to terrorism, or privacy and the right to information. If they failed to assess illegality correctly, there would come responsibility. They became the first line of defense of our digital rights.
The thing is, making legality assessments is not easy. In theory, it might chime with US Justice Potter Stewart’s famous observation about obscenity – that platforms will know illegality ‘when they see it’. In practice, online platforms realised (with tremendous societal cost) that they needed to perform public-like judgments. They were not ready for it.
Privatisation of power in the metaverse
Metaverse can quickly exacerbate this trend.
Imagine one platform offering an entire array of virtual and augmented reality opportunities. All the business transactions, legal disputes, community moderation and pitfalls of the real world in one digital place, governed by one private actor. Could any online platform balance all of those conflicting rights?
If Metaverse becomes the new universe in which users will conduct all sorts of digital and physical activities, we must take caution. Most importantly, we must acknowledge that online platforms cannot be the sole legislators and judges of those spaces. We must shape the digital architecture from day one.
Participation
First, users must be able to define the ‘constitutional’ architecture of the Metaverse. This means participating in the definition of standards via decentralised voting mechanisms (choosing avatars is nice, but choosing norms is even nicer!). This can be done by establishing digital assemblies using the Metaverse itself. They could be divided into individual communities (each sub-metaverse would discuss its own rules) or organised in representative structures (say, associations of metaverses represented at Meta’s General Assembly). None of this is utopic or unfeasible. Metaverse’s highly interactive and personal nature is perfectly adapted to this sort of political interaction. With local metaverses shaping their own rules, the legitimacy of decisions on specific content would greatly increase.
Adjudication
Second, users must be able to understand and challenge the unilateral decisions of Meta. A principle of due process must be incorporated in the Metaverse. Users must know the procedures leading to a given content decision. They must be able to contest them. Out-of-court dispute settlement bodies and transparency requirements – like those proposed by the new Digital Services Act – are a possibility to do so. Digital arbitration with specialised independent bodies within the Metaverse, with digital law firms arguing cases, does not seem that unlikely. Internal metaverse litigation will arise quickly (questions of property ownership will kickstart it), and Meta cannot settle it unilaterally. Long-abandoned royal or imperial prerogatives should not be resuscitated. Transparency, explanation and due process should replace opacity, secrecy and unilateralism as the guiding principles.
Pluralism
Third, all of this will only work if a fundamental attribute is present: pluralism. Meta’s architecture must ensure that people with conflicting views interact, are shown different content, and that metaverse bubbles are not created. If Meta maintains Facebook’s business model based almost exclusively on targeted advertising and community clustering, we will expand current social and political division to unprecedented dimensions. The worst thing that could happen to Meta would be to repeat the Facebook of the present. The EUI’s Miguel Poiares Maduro and I have published some ideas on how a plural algorithmic market could work for the future. The same logic could apply to metaverse suggestions (which Art gallery to visit; which square to hang out in; which country club to join). The important thing is for metaverses within Meta to debate and listen to one another.
Only through the creation of such a digital constitutional architecture can we expect the Metaverse to become our new public sphere. The Internet has suffered from being tossed between corporate and state power. It is time for users to engage in the co-regulation of their digital spaces. Shaping the rules for metaverses is a fundamental step to ensure our shared digital future.
Francisco de Abreu Duarte is a PhD Researcher in the Department of Law. His thesis focuses on the dynamics between public and private power in the regulation of digital platforms. His publications include articles in the European Journal of International Law, and he contributes regularly to several blogs.