This is my thesis of my Master’s in Leiden University

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Executive Summary:

Virtual identity is not a recent term, having been discussed in the game Second Life around the 2000s. However, with the trending of streaming during the COVID-19 pandemic, VTubers stood out in the development of self-media in 2020. VTubers then crashed the streaming market, just using a human shark, instead of a generally attractive public figure as a human. In this paper, VTubers are characterized by three components: 1) a Live2D image; 2) the character’s own background story and characteristics; and 3) a channel and nickname that is new or has not been revealed before. This thesis examines the extent to which current European Union (hereinafter EU) laws adequately protect Vtubers from criminal offenses.

Due to the unique characteristics of VTubers, this thesis assumes virtual identity exists for the VTuber itself and this identity is different from the VTuber actor or actress. The theory of virtual identity is divided into three types: I) the real identity is almost the same as the virtual identity; II)) the real identity has some connections with the virtual identity; and III) the virtual identity is almost disconnected from the real identity. The connection with the real identity and the degree of revealed information about the real identity provides a new way to determine what has been done so far and what needs improvement about current offenses against VTubers online.

Under the European Union, several treaties regulate the Member States. The two most important international human rights treaties are the Charter and the European Convention on Human Rights of the Council of Europe (hereinafter ECHR). Although the Council of Europe is not the ruling EU body, judgments based upon the ECHR are binding upon Member States by individual States. Moreover, intellectual property law, specifically relevant copyright laws, as well as several treaties of the World Intellectual Property Association (hereafter WIPO), primarily the Berne Convention and Beijing Treaty, protect copyrights and neighboring rights. These international laws bind the European Union and its member states.[1]

The strength of connection to the real identity determines the protection of the associated virtual identity. In type I, the virtual identity is almost the same as the real identity and precisely the same as a natural human; thus, the protection is no different from general cases. However, in type II, where the identities have only some connections, there is a decrease in the protections. The right to privacy is always with the virtual identity, especially in type two which improve the level of proteciotn. Furthermore, General Data Protection Regulation (hereafter GDPR) does not apply to virtual identities. However, once the veil between the virtual identity and the real identity has been pierced, GDPR will assume its role. In type III, where both identities are almost disconnected, GDPR does not apply to this kind of virtual identity, and the right to privacy is only protecting cyber privacy.

Additionally, using stage names for content creation decreases the protection period under WIPO’s treaties and conventions. As applied to virtual identity, a VTuber’s name could be considered one kind of stage name. By contrast, there is no decrease in IP laws for type III VTubers. This paper concludes that less strength between virtual and real identity means less protection under EU laws. We then compare Yuduki Roa’s case in Japan to EU law and examine if the protection of EU law is sufficient to handle current legal issues. After research, this paper found the following inadequacies in EU laws. GDPR protection is adequate for Roa in her case. For example, doxing is prohibited under GDPR, which means leaking VTubers’ images, names, and dates of birth is illegal in the EU. At the same time, only searching for an actress of a VTuber’s information will not violate GDPR. However, in other fields: cyberbullying, cyber sexual harassment, reputation, work, and property are regulated by the Member States instead of EU law. Thus, this thesis suggests that the EU must pass the relevant Directive and Proposal as soon as possible. The absence of additional regulation will leave a gap in protection.