Digital Culture & AudioVisual Challenges

This paper continues the discussion on advanced jurisprudence, outlined in Algorithms, Ethics and Justice, where restorative justice was proposed for the mitigation of artificial intelligence (AI) crimes. Algorithms, Ethics and Justice proposed an alternative approach to the current legal system by looking into restorative justice for AI crimes, and how the ethics of care could be applied to AI technologies. This paper will expand the notion of cyber crimes from AI crimes to extended reality (XR) crimes, given the rise of the metaverse, and the future scenario of bio-metrical data of EEG capable headsets being misused by rogue companies and/or criminals. The paper will do so first by discussing Mill’s text On Liberty, as a context to explore open justice in extended realities (XR), and then by continuing the discussion around the right to be forgotten and the freedom of the press versus privacy, through a comparative analysis between the legal situation in the EU and that of the USA.

A legally well-regulated metaverse, and in a wider sense a well-regulated social media environment, could be seen as a potential democratic tool allowing metaverse users freedom of expression and freedom of information access, through an advanced form of jurisprudence. Nevertheless, social media users, including metaverse users, should also consider that those rights come with responsibilities, namely legal restrictions on infringing other users’ privacy rights.

One can discuss Mill’s consequentialist utilitarianism, outlined in On Liberty, in a contemporary context juxtaposing social media users’ freedoms against other users’ right to privacy. On Liberty can be used in the metaverse context where there is the potential for “super users”, such as influencers, or a “tyranny of the masses”, to harm the rights of individual users. Mill followed Bentham in his discussion on utilitarianism. The protection of minorities’ and individuals’ rights is central to Mill’s On Liberty. Bentham discussed jurisprudence in regard to the happiness of such minorities or individuals. Bentham writes that “publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial”. Bentham defended open justice in order for the public to be able to follow court trials and to check if judgments are enforced in a fair manner. One might say that in the past, court hearings were the social media of society. Many people attended court hearings, sometimes also only for entertainment. Nowadays the public can still attend court hearings, though interest has vanished, and the public relies today on social media posts and news to be informed about ongoing trials.

This paper will also discuss Mill’s notion of preventing “harm to others” —basically, the concept of a protection of the individual user against harmful action(s) of the masses and/or of other users, grounded on the claim that “the individual is sovereign”. As there is a whole range of harm, this paper focuses on the protection of individual users’ privacy rights, the users’ sovereignty over mind and body, especially in light of the planned use of EEG headsets on the metaverse.

In an ideal world, XR users would have a balanced discussion on political issues in the public sphere, such as the metaverse. Rather than following such an idealistic vision it might be more compelling and adequate to create a media plurality within the metaverse. That said, there are certainly also metaverse users who will never breach an ethical code, but those same users might also never risk sharing controversial views, basically conducting self-censorship. This might very well be the new tendency metaverse users see themselves following through future XR criminal court proceedings. The paper concludes by reviewing possible international open justice scenarios for XR criminals.