Data privacy protection issues, bodily injury torts/security concerns, the tort of trespass to property amongst many other controversies have trailed in the wake of the launch of Pokémon Go an augmented reality smart phone based game.
The game was developed and released by Nintendo and Niantic Labs, and launched with some collaboration from Google. The game has been a smash hit with record downloads levels and a share price bubble for Nintendo (that seems to have burst!). Reportedly with over 30 Million downloads in under 2 weeks, it has taken the cake as the "most popular mobile game of all time"! The author confirms over 50Million downloads on Google Play Store alone as at 7th August 2016!
It has all the trappings of a cultural revolution as "screen-stuck" players have to use their iOS and Android enabled devices to create an Avatar (sort of a virtual reality alter-ego) that the player uses to catch, train, trade and battle these Pokémon characters. The Pokémon Go virtual world is superimposed on the player's real surroundings as displayed on his device screen. This is achieved using the smartphone's camera and geo-location features.
The game has been an instant rave like other Freemium mobile games (i.e games that are free but have certain features that require your purchasing special in-app "coins" that can enhance your progress in the game). A popular example includes the Crush Saga series from King's (Candy Crush etc).
However this game comes with a lot of legal and regulatory baggage. Unlike other games, as the name suggests, it is not for couch potatoes. Players have to "get up and go" about their city guided by their phones geo-location feature. Consequently data privacy issues have flared up, tragic cases of private mishaps have been reported, and property owners have been infuriated by the army of "other-worldly face-stuck-in-cell-phone" people snooping around their property for invisible beings.
We will look at these issues in the context of Nigeria. Though Pokémon has not been officially released in Nigeria, reports have emerged to show that a growing band of players in Nigeria have somehow downloaded the app and are already snorting out these impish creatures.
2 Personal Mishaps and Bodily Injury Torts
Tragic reports have emerged of personal mishaps including these "Pokér-hunters" (authors phraseology, uncanny similarities intended) running into objects in the real world around them with attendant bodily injuries, auto accidents arising from "Poké-driving" (Driving under a "virtual" influence), falling of cliffs, mugging of Pokér-hunters who venture into isolated spots in their ethereal hunt , luring and abductions etc.
These personal mishaps throw up a lot of personal bodily injuries tort claims under Nigerian law. Needles to state, third parties injured by the indiscretion of these Pokér-hunters have a right to claim damages for negligence or trespass to person under Nigerian Law of Torts.
But more recondite issues arising include;
- Would the dependant of a Pokér-hunter who transmutes to "Poké-utopia" from a game related mishap succeed in a suit against Nintendo/Niantic for that fatality?
- Could a Pokér-hunter who is sued for bodily injuries to a third party move for joinder of Nintendo/Niantic for purpose of claiming indemnity/contribution under a 3rd party proceedings?
- Can the placing of a Pokémon in a lonely alley that leads to the Pokér-hunter being mugged at that location lead to liability against Nintendo/Niantic?
- Can a volunteer who reaches out in good faith to rescue an endangered Pokér-hunter (as in (iii)) above but sustains injuries in the process sue Nintendo/Niantic for negligence? This is hinged on the rule in the English case of Haynes v. Harwood (1934) All ER 103 that gives an action in negligence to such volunteer against the party who imperiled the subject of his rescue mission (i.e Nintendo/Niantic).
Along with the above arises a necessity to examine the extent of the law of vicarious liability and whether Nintendo/Niantic can be held vicariously liable for the misdeeds of a "virtually" motivated player? This arises because Nigerian Law of Tort follows British common law in recognizing that vicarious liability can attach to the actions of a causal agent as distinct from an employee or a direct agent.
3 Trespass to Property
Of course the "Go" in Pokémon Go means: tramp all over the city; private and public property alike, since none of these meddlesome property rights exist in the "virtuous" world where the adorable imps exist (forget the game advisory that states otherwise)!
Unfortunately, in this present "vicious" world the benign tramping in the tranquil "Poké-utopia" world has serious unsavory consequences called amongst others – trespass to property or nuisance. In Nigeria like Britain, the law of trespass to land as a specie of the Law of Torts falls under the category of wrongs that are actionable per se. This means the aggrieved property possessor need not show any actual damage to his property to succeed in a Court action.
What is more, the definition of what constitutes Trespass in Nigeria remains ever so wide that the most flimsy straying upon the land is sufficient. Pouring water upon, protruding a flag or perhaps a smart phone over, putting a ladder against the fence and so many other slight actions that would mean little in the "virtuous" world would have damning consequences.
So our avid celestial paparazzi trying to catch that golden pixie in the back yard of another private individual beware! You just may virtually snort out a gavel-wielding, black-robe-wearing Pokémon (with a blond wig up top in Nigeria)! A factual situation based on this scenario seems to be winding its way to Court in the US city of New Jersey.
Other questions that may arise in respect of trespass in this connection include:
- Could the owner of a property where Nintendo/Niantic has placed a Pokémon Gym or Pokéstop (locations where players can assess a range of otherwise unavailable game features and where they necessarily congregate) sue Nintendo/Niantic for nuisance or the players for trespass?
- Perhaps the antique British case of the Six Carpenters would absolve Pokér-hunters of trespass for tramping around in public places that invite entry such as hotels, bars, shopping malls etc.
Nigeria operates a land tenure system based on notional ownership of all lands by government with a 99 years Rights of Occupancy being the highest possible title. However, the Constitution of Nigeria creates very strong private property rights and the Courts recognize and enforce most British common law principles of trespass to property.
In the final analysis howoever, when you throw-in current security and terrorism related challenges in Nigeria, perhaps the tramping of Pokér-hunters would be confined to public places such as roads, open countryside and commercial premises freely inviting entry to members of the public.
4 Possible Defences available to Pokér-hunters and Nintendo/Niantic
With some of the posers raised above, we can also query whether some of the customary defences to liability in tort would avail our dear Pokér-hunters and Nintendo/Niantics. Of note would include:
- Whether Nintendo/Niantic can hide under the defence of volenti non fit injuria (meaning "that to which a man consents cannot be considered an injury") in a claim by an injured Pokér-hunter or the dependants;
- Or perhaps whether other similar defences such as such as the "assumed consent to risk" of a sport participant would avail Nintendo/Niantic?
Under Nigerian law of Tort, the participant and spectators in a sporting event are considered to have consented to some of the reasonable hazards accompanying the event. They won't be heard in tort claiming for such injuries. But can hunting Pokémons be considered a sport?
- Another way to invoke the defences above is to prove that the sports participant or spectator was expressly put on notice of the hazard and he assumed it in the full light of knowledge. Would the "click-wrap" contract electronically signed by the Pokér-hunters upon download and installation suffice for this purpose? Would more be required in the mold of frequent "pop-up" warnings? Or would the general game advisory warnings suffice?
- Perhaps the quite convoluted common law principles of remoteness of damages which apply with equal force in Nigeria may be the perfect cop-out for Nintendo/Niantic in such a scenario?
5 Nigerian Data Privacy and Protection Law Issues
The launch of Pokémon Go was almost marred by data privacy issues. Excessive collection of personal data was reported for players who registered using their Google accounts. Even though this has been fixed, the entire modus of the game involves the intimate capture of the player's everyday activity with real time videos of his present surroundings to boot!
The fear from a data privacy point of view is that the Pokémon database would become a ripe trove of the kind of intimate details that nefarious characters would "hack-out" their hearts for. Criminals would have a front row view of their victim's life as he goes a-Pokér-hunting, trailing and perfecting their hideous plans easily. Or perhaps the criminals could insert spoof points of interest in isolated locations where they can strike!
While Nigerian Data Privacy and Protection Law and its regulation and enforcement are currently a relatively ineffective patchy quilt work, a robust legislation has been on the cards for a while. However, the following represent the current state of legislation:
- Constitution of the Federal Republic of Nigeria 1999: Section 37 provides a wide swath and states in very general terms that "The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected."
Enforcement of Fundamental Rights, an accelerated special specie of Court action supported with international sources such as the African Charter on Human and Peoples Right and foreign case law have enabled the efficacious use of this provision particularly against government infringement of privacy.
However this wide swath is little match for today's state of technology with data mongers like Pokémon Go on the prowl!
- NITDA Guidelines On Data Protection: The NITDA (Nigerian Information Technology Development Agency) is charged with developing Nigeria's Info-tech sector including the power to make regulations.
Save for the relatively lack-lustre enforcement (doubts still persist whether the regulations have been issued and acquired enforceable status), the NITDA regulations provides the most comprehensive cross sectoral Data Privacy and Protection framework in Nigeria. The Guidelines are "specifically issued pursuant to sections 6, 17 and 18 of the NITDA Act 2007 and a breach of the Guidelines shall be deemed to be a breach of the Act".
Further the Guidelines are stated to be:
mandatory for Federal, State and Local Government Agencies and institutions as well as other organizations which own, use or deploy information systems within the Federal Republic of Nigeria. They serve as reference for Data Collectors, Data Custodians, Data Processors, Data Systems Auditors Data Controllers and Security Personnel, among others.
Additionally it provides that "the Guidelines contained herein shall apply to all data controllers in public and private sector as defined in these guidelines". The Guideline is sufficiently couched in wordings that suggest that non-Nigerian data collecting outfits that collect the data of Nigeria residents such as Google and Nintendo/Niantics are covered and required to comply with its mandatory provisions.
Complying with the NITDA Regulation fairly well follows the international best practices in the field including designating responsible officers for data handling purposes et al. Additionally the Guideline sets out 8 guiding principles that follows the international norm. These principles include:
- Personal data must be processed fairly and lawfully;
- Personal data shall only be used in accordance with the purposes for which it was collected;
- Personal data must be adequate, relevant and not excessive; (this covers the initial data collection furore involving Nintendo/Niantic and Google)
- Personal data must be accurate and where necessary kept up to date;
- Personal data must be kept for no longer than is necessary;
- Personal data must be processed in accordance with the rights of data subjects;
- Appropriate technical and organizational measures must be established to protect the data; and
- Personal data must not be transferred outside Nigeria unless adequate provisions are in place for its protection.
A feature that runs through the NITDA Regulation is the requirement for the informed consent of the "data subject". This requirement calls for careful consideration of the "click-wrap" contract and all other necessary pop-up warnings.
- Consumer Code of Practice Regulations 2007: issued by the Nigerian Communications Commission (NCC), the national telecoms regulator provides perhaps the only law on data privacy and protection with any reasonable prospect of enforcement currently. Albeit its scope is limited to Telcos under the NCC's supervision.
The Regulations imposes an obligation on all Telcos to take reasonable steps to protect customer personal information against "improper or accidental disclosure". Further Telcos must ensure that such information is securely stored. Telcos must ensure that customer information is not "transferred to any party except as otherwise permitted or required by other applicable laws or regulations".
Pursuant to these requirements, the NCC recently mandated all Telcos to issue a Do-Not-Disturb Code that allows subscribers to opt-out of promotional SMS sent typically by 3rd parties who sometimes obtain subscriber data from the Telcos.
- Nigeria Freedom of Information Act 2011 (FOI): another general law that contributes tangentially to Data Privacy Protection in Nigeria. The Act relieves public authorities of the onerous disclosure obligations mandated under the Act where such disclosure would divulge personal information. The Act equally protects the customary professional confidentiality privileges such as communication with lawyers, health workers and journalists.
- Nigerian Childs Right Act 2003: this provides another limited regime on Data Privacy and Protection that has direct impact on games such as Pokémon Go. It sets the age of majority in Nigeria at 18 years and provides some measure of protection against disclosure of personal information of minors.
This would necessitate a review of age restrictions and warnings set on games such as Pokémon Go when they is an intention to launch them in Nigeria.
In the final analysis, Nintendo/Niantics and the barmy army of Pokér-hunters must carefully weigh their actions as their astral adventures come with some serious temporal misgivings.
However it is certain that the fad would only heighten irrespective of the dangers highlighted above. The positives of Pokémon such as improved health walking, tourism stimulation and cultural enlightenment are outside the subject of this article but are not impugned in anyway. They sure are benefits and some of the dangers highlighted above may not be as serious and could easily be mitigated.
Now, where is that elusive Pikachu!
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