Pokémon Go – The Law, You Gotta' Break Them All!

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...