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 gamers themselves?
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 are obvious.
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 Pokémon Go.
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 reported?
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.
Disclaimer
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.
