3D Avatars, graveyards, and the Law

January 31, 2023

The SCL 2022 Public Policy Forum took place on December 7, 2022 at Queen Mary University. In his presentation, Andres Guadamuz (Sussex University) explained that virtual worlds are nothing new, and that it is evident that we still lack a clear concept of what the ‘Metaverse’ actually is. While this is all true, yet the idea of this virtual 3D space has been surrounded by strong financial interests, speculation, a noisy futuristic narrative, and it’s very much all over the media. Therefore it is worth exploring its potential challenges.

I had the opportunity to join the panel on ‘Privacy on the Metaverse’ with Fernando Barrio (Queen Mary University) and David Satola (World Bank) as speakers, along with Michaela MacDonald (Queen Mary University) who chaired the session. Several intriguing issues emerged, from topics of international private law to the micro-mining of personal activity, such as avatars’ movements in the Metaverse.

My contribution highlighted one aspect that interests me profoundly and is closely related to what I am currently exploring in my doctoral studies at Newcastle Law School, under the supervision of Lilian Edwards (Newcastle University): what will happen to the avatars of the deceased in the Metaverse?

I remember coming across a blog post on UX Collective at some point last year. It discussed how the endeavour of tech giants, like Facebook/Meta or Microsoft, to enter the realm of 3D virtual spaces, opens a gap for new opportunities to relive and reconnect with people, even the ones who have died.

The idea that Big Tech companies are selling is that we will use avatars for everything and we will see them everywhere. As much as we currently use social media accounts to sign up and access third-party services, we would use our avatar to explore this 3D virtual environment and its multiple experiences, from buying fashion items to attending concerts, or perhaps even celebrating weddings. But there has been little reflection on what will happen to those avatars once the user dies.

This problem has arisen before with the emergence of social media platforms and the profiles of the dead. Millions of people started to sign up with no clear idea of what would happen to their profiles once they’d died. While Facebook has advanced a memorialisation policy on the matter, and some jurisdictions have introduced specific legislation that targets the issue – such as France (Law 2016-1321 for a Digital Republic), Spain (Catalonia’s Law 10/2017 on Digital Wills), Mexico (Amendment of Mexico City Civil Code Art. 1392 Bis) or the US (Revised Uniform Fiduciary Access to Digital Assets Act) – avatars and their potentially posthumous use in a 3D environment make them a challenge of their own.

Imagine entering as your avatar to a designated place were one could connect and interact with avatars of the deceased. The motion, animation, movements, or possibly even mannerisms and sound of voice, would make this experience something far beyond visiting a memorialised profile over the screen.

The chance to continue using avatars of the dead for some purposes, such as honouring the dead, using them for collective memory, or continuing bonds, may trigger different reactions. Until now answers are not universally clear, they depend mostly on how the legal institutions of property, privacy, and contrast play out in specific jurisdictions. In my experience at looking into different legal instruments and platforms policies, I envisage three potential scenarios: preservations of dynamic avatars, development of virtual 3D cemeteries, and deletion of data. Naturally, these three schemes depend on the amendments of the Terms of Service of the providers and their policies, and on the legislative measures that some jurisdictions may take at some point.

The first scenario would create a place where one could approach an avatar that mimics the activity of the dead user, this could become an intimate vivid experience. Something slightly similar actually took place in 2020. After losing her child, a South Korean mother interacted in a 3D virtual space with an avatar version of her daughter. In this context, it is unclear if there would be measures, to control or restrict the continuous collection and exploitation of data derived from the interaction of post-mortem avatars with living users. Needless to say that if providers decide to introduce this option in the market, they would do so on the basis of financial incentives, not for the sake of social benefit in terms of innovative ways for relief and grieving.

The second scenario opts for the preservation of passive avatars in cemeteries. Something not far from what we have witnessed with websites such as https://virtualgrave.eu/, or https://cemetery.org/, where people go to those websites to visit a memorial page, light a virtual candle and leave a message every now and then. It would be a more conservative, less interactive experience, with the possibility of perhaps displaying pictures or videos of the deceased, but with no post-mortem avatar engagement. This preservation would echo the existing memorialisation of social media profiles.

The third scenario is simplistic, but clear, which is the deletion by default of the data or, at least, the avatar itself. Deletion by inactivity is something that may sound reasonable to expect in the current context of social media. However, it is rare to find inactivity as a cause of deletion in most social media platforms, and even when present in some form in the ToS, it is a provision rarely enforced. The deletion of post-mortem avatars by inactivity could nevertheless be an option. It would become likely in the event that providers do not find a way to profit from data of the deceased, in addition to the eventual costs of data storage and serves to preserve such data.

These are the three main frameworks that come to my mind. Of course, there may be other alternatives that would combine elements from each one or – why not? – something way beyond my conception might emerge.

It is also a possibility that the ‘Metaverse’ will not materialise as expected, or would simply fall short of what people are currently imagining. Nevertheless, the truth remains that as technology evolves, people will explore new ways to remember and interact with the dead. Post-mortem avatars are just an idea at this point, but there will likely be other forms of digital technologies and posthumous interaction. In the end, we are made of flesh and blood, but also of stories, memories and experiences – and these, apparently, are larger than life.

Mauricio Figueroa

Mauricio Figueroa is a lawyer (UNAM, Mexico – Tel Aviv University, Israel) and is now pursuing a Ph.D. in Newcastle Law School, where he is a member of the research group “Law and Futures”. @mfiguerres