Pokémon Go has captured the 21st century
gamer with its fusion of the real world and the gaming world. Now
that the Poké-dust has settled, what impact has the first
month of this interactive game had on the legal liability of the
developers Nintendo, Niantic, The Pokémon Company or the
Legal issues ranging from trespassing, anti-social behaviour,
criminal offences, privacy violations, health risks, actual harm
and even death to the Pokémon Go user have been reported so
far. Gamers wandering into remote areas and being subject to
robbery and violent crime has also been reported, as well as
numerous counts of trespassing on to private and commercial
property. Construction sites, which by nature are areas of
precarious industrial hazards, to live railway lines and level
crossings have been recorded as places of Pokémon hotspots.
Clearly these present perilous areas even when alert to the pending
dangers these environments pose, but when engrossed and distracted
when trying to capture a rare 'Clefairy', the consequences
Who is liable?
In terms of licensing, Nintendo and co-developer Niantic say
"not I". Nintendo warn users when downloading the game
with safety notices of 'distracted playing' and warnings of
'safe play'. Niantic's 'terms of service' also
explicitly includes disclaimers against liability for user breaches
of 'safe play' effectively placing the responsibility on
the gamer to:
"maintain [their own] health, liability, hazard,
personal injury, medical, life, and other insurance policies as you
deem reasonably necessary for any injuries that you may incur
while..." engaging in the interactive world of
But will these disclaimers provide an absolute protection for
the developers? How can the developer waive any responsibility in
terms of harm or injury caused to its customers when it is in fact
the root cause of these wrongs, for example, by placing
Pokéstops and Pokégyms in dangerous locations such as
cliff edges, construction sites and level crossings as
Breaches of the Law
There have been reported complaints of eager young
Pokémon players trespassing into private land, others
forming congregations at private properties in order to catch the
most desirable Pokémons. At first glance, straying into
someone's private property will extend to no more than a civil
dispute in Scotland.
However, if a group of users were to attend en masse at a
private property in order to secure the capture and taming of
'Pikachu', they must tread carefully that a potential civil
dispute doesn't quickly become a criminal matter. If a
homeowner were to look out and see a gang of creeping undesirables
acting suspicious in their back garden, then this could lead to a
potential criminal breach of section 38 of the Criminal Justice and
Licencing (Scotland) Act 2010. Police Scotland could objectively
conclude that the conduct resulted in the homeowner suffering fear
and alarm and therefore an offence constituted.
In the USA, the first Pokémon Go law suit against the
game's developers recently entered its early stages.
Preliminary papers for a civil action against the developers have
been filed at the Northern California District Court. The action is
based on the developers' allocation of Pokéstops and
Pokégyms at private properties having been done so without
the consent of the properties' owners. The outcome will be
readily awaited and could potentially open the floodgates for
further actions. Could this be the end of 'augmented reality
technology' based gaming, we will have to wait and see.
The material contained in this article is of the nature of
general comment only and does not give advice on any particular
matter. Recipients should not act on the basis of the information
in this e-update without taking appropriate professional advice
upon their own particular circumstances.
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