By Jessica Rubery
Whether you grew up in the 90’s and early 2000’s or if you have recently become a fan of Pokémon, Pokémon Go has taken the world by storm. Since its release, there have been questions about whether Niantic, the game’s creator, could be responsible for its players who commit crimes or torts while using the game. The answer to those questions falls within the game’s Terms of Service Agreement and possibly even within some of the game’s warnings.
Since the game’s launch, stories of people being injured while playing Pokémon Go or even cases of trespass have arisen. In some cases, cars have hit players because players have walked out into a road without looking up from the game. In other cases, people have even caused accidents by playing Pokémon Go while driving. Further, people have even gone so far as to trespass to catch Pokémon, or even have attempted to catch Pokémon in inappropriate places such as the Holocaust Museum. However, the game does attempt to warn players to prevent such instances.
For those who do not play the game, the game’s loading screen cleverly warns the player to remain aware of their surroundings. With recent updates, the game now not only warns the player to remain aware of the surroundings, but also not to trespass while playing the game. In addition to the new trespass warning, the game can sense when a player is in a moving vehicle and will prompt the player to confirm that the player is a passenger. Now, players can obviously click the “okay” and “I am a passenger” buttons, even if it is untrue, but it still allows the company to force the player to accept responsibility for their actions.
So what does all this mean for the legal ramification? In the Terms of Service, there is a waiver of legal rights that is agreed to when you accept the terms. One could request to opt out of the waiver of legal rights by contacting the game’s developer, but ultimately each person is responsible for their own actions under the law. Thus, if a player enters into a no-trespass area while playing the game and the property owner calls the police, the player could face legal trouble and would not be able to use the game as a defense for trespassing.
To the contrary there may be some legal relief since recently a group of property owners has formed a class action suit against the company because players have trespassed on their property. In such lawsuit, the plaintiff asserts that the company used the property without permission by adding a Pokéstop on his property. It is unclear whether such an argument will be successful in court, however, technology and the law have never been on the same page, and thus an interesting legal battle is about to unfold.
In addition, there have been reports of people walking into roadways and unsafe areas because they are not paying attention, despite the game’s warning to pay attention to the surroundings. Ultimately, if a player does not pay attention to the surrounds, the warning coupled with the waiver in the Terms of Service agreement, the player will likely be responsible for the consequences of not paying attention. Law often does not excuse a person’s actions just because they were distracted. In fact, if players drive and play they could face the legal ramifications of the distracted driver laws. While most of the time the punishment under a distracted driver law is a ticket, it could cost more than that if there is an accident. Further, in states that still have contributory negligence laws, the players’ own negligence by not paying attention could prevent recovery for injuries that occur, or cause fault to be placed heavier than it would had the player not been negligent.
Overall, the law typically holds an actor responsible for his or her own actions. Thus, while it is unclear whether a court will hold Niantic responsible for their players’ actions, it is likely that the players will not be able to escape all personal liability. Unfortunately, until a court makes a decision in the class action suit or until legislation is passed, who is responsible may remain unclear. While some tort law may be able to be used to conclude that a player may be more or less negligent, it is difficult to say what exactly will occur since the law is slow to catch up to technology.
Student Bio: Jessica is a Lead Blog Editor on the Journal of High Technology Law. She is currently a 3L at Suffolk Law. She possesses a B.S. in Legal Studies and Foreign Language from Roger Williams University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.