Platform rules and civil remedies fit this conduct better than prosecution

The argument

A second strand of opposition concerns the instrument rather than the principle. Even those who think conduct in augmented reality can be genuinely objectionable argue that criminal prosecution is a poor way to respond to it. A prosecution is slow, expensive and retrospective; it requires proof to the criminal standard, and it produces a punishment rather than a remedy. What a person troubled by an overlay usually wants is for the overlay to come down, which prosecution cannot deliver and which the operator of the system can do at once. Opponents argue that the remedies already available are better matched to the complaint. Platform rules can remove content, suspend the account that placed it and bar the same conduct in future, and they can be written to prevent a stranger attaching anything to another person's home or body in the first place. Where loss has been suffered, civil claims can require compensation and injunctions can forbid repetition, both on a lower standard of proof and at the instance of the person actually affected rather than a prosecutor exercising discretion. They add that criminalising this conduct would require decisions the criminal law is not well placed to make. Someone would have to define where a virtual act occurs for the purposes of jurisdiction, whether the person liable is the user who placed the content or the designer who made placing it possible, and how an offence is proved from records held by a private company. Opponents hold that answering those questions through prosecutions would produce inconsistent results, and would draw the most serious penalties the state has towards conduct ranging from cruelty to tasteless joking, when private and civil enforcement can separate the two more finely.

Premises

Counter-arguments

Critics of this view argue that it leaves the response to harm with parties who have no obligation to provide it. A platform may act quickly or not at all, its rules can change without notice, and its interest is in retaining users rather than vindicating one of them. Civil claims, meanwhile, are available in principle to anyone and in practice to those who can fund them, which makes the remedy depend on the victim's means. They add that some conduct is not merely a private dispute: persistent intimidation of a household is treated as a public wrong precisely because the state, not the injured party, is expected to answer it. On that view private enforcement is a useful supplement and an inadequate substitute.

Rejecting the premises

[Rejecting P1] Prosecution is not meant to supply removal, and serving a different purpose is no reason to leave a public wrong unaddressed by public means. [Rejecting P2] Platform rules bind only while the operator chooses to enforce them, and civil claims require the injured party to find and fund a case, so neither is reliably available to those most likely to be targeted. [Rejecting P3] Questions of jurisdiction, liability and proof arise for every new technology and are settled by courts and legislatures in the ordinary way; difficulty of application is not an argument for immunity. [Rejecting C] The most that follows is that private and civil remedies should be the first response, which is consistent with prosecution remaining available for the most serious conduct.