Lead Forensics
Prettys Solicitors Ipswich

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Pokémon Go Begone! Linking Augmented Reality and the Law

Since July, the mobile app Pokémon Go has been downloaded 500 million times, and users have collectively walked over 2.5 billion miles to catch Pokémon and spent over £400 million on in-game items.

The premise of Pokémon Go is simple: the app is used to catch virtual creatures – Pokémon – at PokéStops in various real-world locations. Players can also add “Lure Modules” to PokéStops to attract more Pokémon (and in turn more players) to the location.

The legal issues with augmented reality apps have yet to be fully explored in court (although at least one claim has been lodged in the United States), but the purpose of this update is to look at some of the issues which could arise under UK law.

Trespass is the most frequently discussed legal claim in relation to the use of Pokémon Go. This is usually a civil matter (i.e. not one handled by the police) that is based a person’s direct interference with the use of land. Given that PokéStops and Pokémon can potentially spawn on private land there is an obvious risk of players entering private property to capture Pokémon. It is actually irrelevant as a matter of law whether the player intended to trespass; the fact that they chose to enter the land, regardless of whether they knew the land was private property, is sufficient.

Unsurprisingly, there are no court decisions as to whether the addition of “Lure Modules” to a PokéStop located on private property constitutes trespass. However, there is a strong argument that adding these Lure Modules to a PokéStop is not a sufficiently direct interference with the land in question to constitute trespass as the Lure Modules only affect a map within the Pokémon Go app, rather than the physical property itself.

The primary remedy for a trespass claim would be damages to compensate the landowner for the use of his land. However, they are unlikely to recover a substantial amount unless they can show some physical damage to their property or that they have been deprived of his use of the estate.

If players were continuing to trespass on the property in search of Pokémon, it may also be possible to obtain a court order (injunction) prohibiting Pokémon Go users from continuing to enter property to protect the landowner from further trespassers. Breach of this court order would be an offence for which the trespasser could be imprisoned. However, in reality the pragmatic approach would be to ask Niantic (the developers of the app) to disable the relevant PokéStop on the basis that it is located on private property. This would prevent further Pokémon from spawning on the land, resolving the underlying issue. Niantic have honoured various requests to prevent the appearance of Pokemon in certain locations, with many historical sites and sensitive locations now Pokemon free.

If a player were to repeatedly trespass on private property whilst playing the game there could potentially be argument for the criminal offence of aggravated trespass if it could be shown that there was an intention to disrupt or obstruct any lawful activity which is engaged in on that private property. In extreme cases there could even be an argument that the conduct constitutes harassment, as defined by the Protection From Harassment Act 1997 (PFHA 1997). Under section 1(1) of the act, “[a] person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other”. Harassment can be both a civil and a criminal matter.

The other legal issue which might arise is whether there is any possibility of claims against the developers of augmented reality apps.

It has been clear under English law since at least 1853 that in some circumstances a party who procures the violation of a right by another (whether by procuring a breach of contract or an interference with property rights) can be jointly and severally liable with the party who actually commits the violation.

This seems to suggest that in the case of an action for trespass the developer of the relevant app could potentially also face liability. In the example above this would be on the basis that they have procured or incited the trespass by locating the PokéStop on private land. The developer would presumably argue that it had no conscious involvement in this process and that this was actually determined automatically by an algorithm; however, it is not clear whether this argument would succeed in front of a judge.

There could also be risks for developers in a situation where they failed to exercise an appropriate duty of care in the placement of augmented reality “items”. For example, would it constitute negligence on the part of the developer if they allowed a PokéStop to spawn in the middle of a busy motorway junction or on the edge of a crumbling cliff?

In many of these situations a court is likely to take the view that these situations are so obviously dangerous that there would be contributory negligence on the part of the player involved, which would reduce the amount of any damages claim, but it is not difficult to see a situation where the app developer ends up in the firing line.

Developers will inevitably try to manage this via their terms and conditions of use, which players are required to sign up to in order to use the app. Niantic have gone to great lengths to try to reduce their liability. The logging screen contains a warning for players to remain vigilant of their environment. While this may be enough to limit Niantic’s liability in most jurisdictions, it is important to note that under English law the Unfair Contract Terms Act 1977 means that any exclusion of liability for death or personal injury arising from the negligence of the app developer will be void.

Developers may also argue here that they have not actively placed the augmented reality “item”, but this has been done automatically by an algorithm. This is part of a wider discussion about the duty of care involved in developing and using such algorithms and liability for death or injury which may arise as a result, which is a topic which is likely to develop extremely rapidly over the coming years with the advent of “driverless” autonomous vehicles.

When downloading a new app very few of us read the terms and conditions. The Pokemon-Go Terms of Service remove the user’s right to file a lawsuit against the developers and forces users to arbitrate with no recourse to a court. Due to the costs involved in arbitration, claimants have generally sought to bring class actions in order to share the burden of costs. However, Pokemon-Go’s Terms of Service bar users from joining in any sort of class action. Requiring disputes to be settled by ‘binding arbitration’, a process that takes place behind closed doors, is particularly unfavourable to individuals bringing claims against large corporations.

With Pokemon-Go being the first augmented reality game of its kind the legal implications surrounding the advent of such apps remains unclear; however the outcome of any lawsuits brought against the developer could have a profound impact on the future of augmented reality technology.

Michael Booth

Solicitor

e mbooth@prettys.co.uk

t 01473 298214

 

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