Infiltrating virtual worlds. The regulation of undercover agents through fundamental rights

Abstract

As virtual worlds become increasingly integrated into daily life, law enforcement authorities face new challenges in adapting criminal procedure to these immersive digital environments. This paper explores how undercover operations might be conducted in virtual worlds, focusing on the legal frameworks governing traditional and cyber infiltration in France and Spain, in parallel with selected European Court of Human Rights’ case law. Which opportunities these legal frameworks offer for investigations in virtual worlds, and how should they be balanced with the right to privacy and the right to a fair trial? In Spain, cyber infiltration is part of a unified framework, whereas France treats traditional and cyber infiltration as distinct. Both countries offer broader opportunities for virtual world investigations through cyber infiltration’s flexible scope and authorization. However, traditional infiltration grants undercover agents wider powers that may better align with the unique dynamics of virtual worlds. Therefore, a mixed regime may be needed for effective investigations in these environments. The case law of the European Court of Human Rights underscores the importance of evaluating the proportionality of these measures, particularly with the right to privacy, regarding their regulation, and the right to a fair trial, regarding the risk of entrapment.