Pokémon Go...to jail? When the law and Pokémon Go collide

Author: DAS Law

Date: 23/08/2016

Pokémon GoPokémon Go, the mobile game which has filled the streets with people staring at their phone screens in search of small, colourful monsters, is set to become the most popular mobile game ever. In the US, more people are playing Pokémon Go on their phones than are using Twitter.

But the huge and very rapid growth in game players is causing problems. Players have been warned not to play the game in cemeteries and places such as minefields and Auschwitz. There have also been reported cases of players having to be rescued from caves and filling some parks and public spaces with noisy crowds as players seek Pokéstops and rare Pokémon.

Bearing in mind the potential for problems, the team at DAS Law have put together a guide for both players and the owners of businesses and properties in which the Pokémon are lurking.

Can you catch Pokémon in any public space?

There are a vast number of places in which it would be inappropriate to play Pokémon Go – for example, public buildings such as courts, where photography, filming and mobile phone use is restricted. Other public buildings such as museums and private business premises will have their own terms and conditions of entry. Always check with the staff before playing.

Just because a Pokémon appears on a piece of land, the normal laws of privacy do not cease to exist

Landowners are entitled to the lawful enjoyment of their land and to protection from any unlawful interference with their use or enjoyment of it. It could be argued that a stream of players invading your property could amount to a legal nuisance. If proved, a key question would be who could an injunction be taken out against?

Due to the transient nature of the nuisance, it would be difficult to bring a claim against single player. However, if someone persistently posed a nuisance then it would be more likely to succeed in a claim against them for trespass or nuisance.

Ultimately a claim could be brought against the creators of the game, who may owe a duty to any private landowners negatively affected by the game. However, gamers should be cautious about pursuing such action due to the costs and time involved and the likelihood of gamers stopping their nuisance behaviour prior to a matter getting to a Court. In the event of gamers stopping a nuisance prior to a Court hearing this could significantly restrict the award from the Court.

Can a shop or business bar people from playing Pokémon Go?

Due to the popularity of the game, it is likely that businesses will seek to find ways of exploiting this popularity. Already, McDonald’s is seeking to turn their restaurants into Pokémon gyms. Businesses are entitled to determine their own terms and conditions when permitting any person to enter their premises and it would logically follow that a business or shop could therefore stop users of Pokémon Go from entering if they are not valid customers.

If you are injured while playing Pokémon Go, who is liable?

Despite the game beginning with a warning that you should take care while using the app, it is inevitable that someone will get injured. The question then is: whose fault is it and who is liable?

The game does not provide players with immunity from the law, nor does it give property owners the absolute right to punish any minor infringement of privacy. It’s important to understand the spirit of the game and treat players accordingly.

Jordan Brown, Solicitor at DAS Law

The law states that an occupier (or owner) of any premises could potentially be held liable for a player’s injury as the law imposes a general duty upon them to ensure that people are not foreseeably injured while on their property. A player could argue that it was foreseeable that the premises would be frequented by gamers distracted by their hunting activities. However, a business owner would potentially succeed in arguing there was a contributory fault on part of the gamer which could serve to defeat a gamer’s entire claim.

The most effective steps a business could take to protect itself are either to put up clear signage highlighting the risks of playing Pokémon Go on its premises or to prevent players from entering in the first place.

What are the limits for Pokémon Go players?

VictiniObviously there are certain places that it’s better not to look for Pokémon; some are legally off-limits, some are unsafe; others are simply inappropriate.

Controlled or restricted areas, such as military bases or prisons, where trespass can attract a significant term of imprisonment are perhaps the most extreme examples. The app’s designers have sought to reassure the authorities that the game’s algorithms limit the ‘spawning’ of Pokémon in these areas and any instances would be anomalous.

There are of course certain activities which should not be carried out while using the app. It should go without saying that you should not use your phone to search for rogue Pokémon while driving. If witnessed by police you could be issued with a £100 fixed penalty notice and three penalty points. If the offence was serious enough to go court, you could be disqualified from driving and get a maximum fine of £1,000.

Jordan Brown, solicitor at DAS Law said: “The key with Pokémon Go is for both players and property owners to apply common sense. The game does not provide players with immunity from the law, nor does it give property owners the absolute right to punish any minor infringement of privacy. It’s important to understand the spirit of the game and treat players accordingly. That said, if players do become a nuisance or cause real problems, they need to exercise some common sense, too.”

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