The application of human rights law to AI and virtual spaces is a contested issue in the academic and policy literature on law and technology. As part of this broader debate, the application of human rights law to the metaverse has emerged as an issue which requires further attention and analysis.
This commentary discusses the human rights implications of a significant development in the use of the metaverse which has not yet been analysed fully in existing literature: the creation of digital nations and virtual governments. For instance, the Pacific Island of Tuvalu has created an entire digital nation that will, in the future, need to replace its entire physical country due to the impacts of climate change.
The increasing move of government operations and nations to the metaverse will have significant legal implications. A notable feature of the metaverse is the increasing immersive nature of the user experience. This, coupled with its use by individuals to exercise core political rights, such as political expression and assembly, raises particular human rights concerns. Specifically, the implications this has for the right to participation in public affairs and the right to protest.
What is the Metaverse and how does human rights law apply there?
The metaverse is a virtual world that can be accessed using a variety of technologies, either through a computer or through virtual reality (VR)/augmented reality (AR) goggles. Thus, there are different terms used to describe the metaverse: immersive extended reality (IXR); Virtual reality (VR); and augmented reality (AR) or, more generally, ‘Web 3.0’. As noted in a recent Council of Europe report, the metaverse is characterised by several features: the immersiveness of the experience (2D versus full sensorial experience); the element of presence (the illusion that the environment is plausibly reality); persistence (the virtual worlds continue to exist even when you are not online); the convergence of the physical with the virtual world and the interconnectedness and interoperability of the different virtual spaces.
One of the questions that arises in the context of the metaverse is whether human rights can be applied to online representations of humans (such as avatars and digital twins). Some have suggested that it may be necessary to consider the possibility of granting AI-driven avatars certain ‘virtual’ human rights and others have argued that we should consider applying human rights to the metaverse via a new instrument, such as a Metaverse Charter of Human Rights. However, other organisations have queried whether existing human rights must be adapted to and extended into the metaverse or whether there should there be a clear demarcation between human rights in the two separate realities.
Case Study – Digital Nations and Governments in the Metaverse
A relatively recent phenomenon in the development of the metaverse is the creation of digital nations. These are digital replicas of countries which are created from a mix of satellite imagery, drone footage and photos.
In some cases, the need for such digital replicas to be created is an unfortunate implication of climate change which causes rising sea levels. This significantly impacts some low-lying nations who have been forced to develop digital replicas of their countries so that their histories and culture will be preserved, and to ensure that they will be able to continue to operate as a nation after their physical country becomes uninhabitable. Essentially, a digital nation allows countries to continue exercising their sovereignty as a nation, even if the land of a nation is destroyed.
An example of this is the digital nation of Tuvalu, a Pacific Island whose highest feature is only 4 metres above sea level. The UN has therefore described the nation as being ‘on the extreme frontlines of the global climate emergency’. In 2022, the Foreign Minister of Tuvalu – Simon Kofe – unveiled the digital version of Tuvalu at the United Nations COP27 conference. The minister delivered his speech virtually, standing inside a digital replica of Te Afualiku, an uninhabited islet on the atoll.
The Tuvalu digital nation webspace notes that:
By recreating its land, archiving its culture, and digitising its government, Tuvalu can exist as a nation even after its land is no more. Our digital migration has begun.
In addition to Tuvalu, other cities and countries have launched metaverse digital twins in order to provide interactive government services in a virtual space (with the aim of increasing online citizen participation in government processes). For instance, South Korea has established ‘Metaverse Seoul’ which will offer public services in the metaverse. The aim is to allowing citizens to interact with public officials, resolve civic complaints, and receive consultation services in a virtual world. Singapore has also established a digital twin of its city.
The creation of metaverse spaces for government activities and to replicate sovereign nations raises significant legal complexities, including how important human rights such as the right to political participation and the right to assembly can be expressed in such a space.
The Human Rights Implications of Digital Nations and Governing in the Metaverse
The creation of digital nations raises a wide array of human rights issues. For instance, some tech commentators have noted that participation in the metaverse risks privacy harms because an individual’s digital identity can be tracked and surveilled, especially if the person is using VR or AR technology.
In this commentary, I wish to focus on two particular rights which have not yet been addressed in the literature: the right to participation in public affairs and to vote (recognised in Article 25 of the ICCPR) and the right to peaceful assembly (recognised in Article 21 of the ICCPR).
The right to participation in public affairs
The creation of digital nations in the metaverse has the potential to enhance the political participation of individuals. For instance, the Council of Europe’s 2024 report on the Metaverse and Human Rights notes that ‘the metaverse offers opportunities for increased political representation and the participation of marginalised communities in civic and political activities, while governments and politicians follow popular platforms and bring their messaging into virtual worlds’. One example of this beneficial aspect is potential of the metaverse to provide a platform for political participation by individuals with a disability who can use technology to enhance their interactions with government.
However, the operation of virtual government services will require careful consideration of how existing human rights law principles designed for physical spaces can apply to the metaverse.
First, the merging of the online and physical aspects of government will require a reconsideration of those rules which apply to the physical entity of government buildings such as parliaments and to other public spaces such as voting booths. For instance, in many jurisdictions, there are strict laws constraining the giving out of political leaflets near polling stations. How will these physical-based laws apply to the metaverse?
Second, as has been recognised by the UN High Commissioner for Human Rights Guidelines on the Right to Participate in Public Affairs, states must ensure inclusiveness in the exercise of the right to participate in public affairs. This will mean that all citizens will need to have adequate access to the internet in order to be able to participate in the government metaverse activities (which will require addressing the digital divide affecting those living in remote areas or where socio-economic disadvantage may impact internet access). Furthermore, states will need to address inclusivity of participation for groups such as women, persons with a disability and other groups such as Indigenous peoples. The need to address the aspect of gender and political participation in the metaverse is particularly important given the evidence of high levels of gender-based violence carried out online, including in the metaverse.
In addition, the rights of expression and assembly which are related to and intertwined with the right to political participation will also require some reconsideration when applied in the metaverse.
The Right to Protest in the Metaverse
The right to protest, made up of the right to freedom of expression and the right to peaceful assembly, is reflected in Articles 19 and 21 of the ICCPR and is widely understood to encompass online protest. This is recognised in the UN Human Rights Committee’s General Comment on Article 21 which notes that:
Although the exercise of the right of peaceful assembly is normally understood to pertain to the physical gathering of persons, article 21 protection also extends to remote participation in, and organization of, assemblies, for example online.
In the past years, the metaverse has been utilised for a number of high-profile protests. For example, the protest platform, Wistaverse, hosted a protest to advocate for the freedom of Julian Assange in August 2023. More recently, a pro-Palestinian protest was hosted in a virtual environment – (PALESTINE) Dataran Tanjung Ma – on Roblox. And in March 2024, a metaverse protest was held at the digital headquarters of Samsung in the virtual town of ‘Decentraland HQ’.
As with political participation, the exercise of protest in the metaverse can encourage and facilitate the rights of expression and assembly. As the founders of the Wistaverse platform describe in their founding document (the ‘Wistaverse Whitepaper’), the metaverse can offer ‘a safe, neutral space for protesters to come together anonymously, with no data collection and complete self-sufficiency’ and states that ‘[t]he platform is community-moderated to ensure a secure and trusted environment for social activism’. The platform is also designed to be open – according to the‘Wistaverse Whitepaper’, ‘[a]nyone can organise a protest, anyone can attend. Participating will be free and owning 1 WI$TA token will give you access to all of the functionalities including voting, donating and governance.’
However, do the rights of expression and peaceful assembly apply in the metaverse in the same way that they apply in the physical world? One key debate in protest law is the extent to which states can criminalise protest which has an element of violence or causes disruption to society or the economy. How would this apply to government in the metaverse where disruption and violence do not involve real people? For example, if protestors entered the online space of a digital parliament to protest about climate change and stopped a virtual parliamentary debate by shouting and interrupting proceedings, how would the level of disruption caused be assessed and would the online nature of the protest be a factor in considering the proportionality of any criminal penalties? Furthermore, could such protestors be banned from the government metaverse space if that would also affect their ability to access government services?
Analysis and Conclusions
The development of government platforms and spaces in the metaverse presents both benefits and challenges for human rights law. On one hand, such interactive, immersive online platforms have the capacity to encourage participation in government and the ability to protest from individuals who may otherwise face difficulties in physically accessing such places in the real world (for instance, those in remote communities and those with mobility challenges or a disability).
However, in my view, the operation of government processes and assemblies in the metaverse also raise significant human rights concerns. First, government in the metaverse may exacerbate existing human rights concerns in society. These include the digital divide (inequalities both across nations and within), the discriminatory nature of gender-based online violence (such as deepfakes, which may particularly hinder women’s access to political participation in a government metaverse setting) and other inequalities. Second, the application of human rights law in the metaverse is complex. This is because much of human rights law is based on physical objects and spaces. For example, many of the principles and case law on the right to assembly are based on street protest. It will be difficult to apply this wholesale to a metaverse setting.
This raises the issue of how human rights law should develop in order to meet the particular challenges posed by government in the metaverse and digital nations.
One option may be to utilize existing frameworks – for example, to bolster online safety legislation which currently operates in countries such as the UK and Australia – so as to protect the rights of users of the metaverse. Another may be to draft a technology-specific Metaverse instrument, such as a ‘Human Rights Declaration for the Metaverse’. This type of international instrument will be required in some form as the metaverse is cross-jurisdictional in nature. As a result, there will be a need for harmonization regionally and/or globally in this area. As part of this, the thorny issue of granting rights to ‘avatars’ will need to be addressed.
Whichever option is chosen for development of human rights law in this area, the particular aspects of the metaverse – its immersive nature and its propensity as an online platform to exacerbate existing human rights harms already occurring in the physical world – will need to be carefully considered in the context of virtual governments and digital nations where state power is being utilised against citizens.
