Pokémon Go: Legal Issues That Could Snowball

August 19th, 2016

A number of legal issues surrounding its use seem to be arising

By Pascal Lauzon, Lawyer and Dawei Ding, Student. Written in collaboration with Nicolas St-Sauveur.

Pokémon Go, the much talked-about game that took the entire world by storm in just a few weeks, is enjoyed by many while others consider it to be a real headache. Available in Canada since July 17 (it launched in the United States on July 6), a number of legal issues surrounding its use seem to be arising, and some have even already turned up in Court. Here are a few ideas to ponder to better understand the complex legal issues related to this type of application, many of which are without precedent. These should definitely be taken into account by anyone creating a new revolutionary application.

Developed and marketed by Niantic Labs, an American firm, in collaboration with Nintendo, Pokémon Go is a free application that allows users to catch virtual creatures (Pokémon) by walking around in tandem with smartphone geo-tracking services and augmented reality. These features are used by many mobile applications, and the issues they raise may apply to a large number of games or applications that are either already on the market or about to be launched.

Pokémon Characters on Private Property: A Violation of the Landowners’ Privacy?

The application’s algorithm works in such a way that Pokémon characters sometimes appear on or right next to private property. Even if the rules of the game state that a player must not enter or walk on private property, could the developer be held liable for trespassing in cases of unauthorized use of private property if it places virtual attractions in these areas?

In the event of physical trespassing, any landowner can ask the application’s developer to eliminate the virtual attraction based on the right to enjoyment of property. A landowner could also seek an injunction forcing the developer to act. However, it remains to be seen what rights a landowner has regarding his or her virtual space in cases where there is no trespassing. In this regard, class action suits have been initiated, for instance in California and Alberta.

Closure of Access to Public Areas?

When a rare Pokémon appears, public areas are sometimes invaded by crowds of as many as hundreds of people, even at night. Despite the drawbacks this phenomenon may create, it can be difficult for municipalities to devise a by-law that would, for example, expressly forbid all Pokémon Go players from entering a park, because discrimination is prohibited under the Charter of human rights and freedoms, which guarantees the right to equal access to public places. Moreover, some parks (Montreal’s municipal parks, for example) are closed to the public at night. Drawing on past civil remedies for incitement to trespass, will municipalities start to institute remedies for incitement to violate municipal by-laws? Meanwhile, as we know, Commune de l’Ain in France issued an order prohibiting The Pokémon Company and Niantic from placing Pokémon characters anywhere in its jurisdiction because of the dangers distracted players pose while walking on public roads.

Pokémon and the Right to Privacy

Through geo-tracking tools and the purchases that users make through the application, Pokémon Go collects a tremendous amount of information about its client base. Up to this point, the developer contractually owns all of the rights pertaining to the data generated by its users. From a commercial standpoint, this data is a veritable goldmine, because it reveals the habits of people according to their geographic location and the places they visit. In Quebec and in Canada, for instance, the way a company can use the personal information it collects from its users via mobile applications is strictly regulated. The issues concerning privacy protection are therefore in the forefront. Although it can be difficult to gauge the consequences of such a situation, the issue remains outstanding.

Can Children Play Without their Parents’ Consent?

If a child under the age of 13 wants to play Pokémon Go, a parent needs to agree to the terms of use. Does such a clause have any legal value? Applying this type of clause is problematic in the context of a video game because it is unlikely that all children will ask their parents before they go ahead and create a user account. This is a new issue, so it will be interesting to see how a Quebec or Canadian court might apply this clause in the context of an online game. Moreover, even in situations where the parent’s consent has been obtained, if the application were to contain advertising, we would then need to contend with the issue of advertising aimed at children under the age of 13, which is prohibited in Quebec under the Consumer Protection Act (“CPA”).

Are Users Protected?

The CPA states that a consumer contract is a contract whereby a person acquires or rents, for their own personal use, a product from a merchant in the course of his business. Although Pokémon Go is a free application, a player has the option to purchase virtual accessories within the game. In this situation, the user becomes a consumer, and the CPA should apply, at least to the item purchased. It therefore becomes relevant for the developer of an application aimed at Quebec consumers to make sure that its terms of use meet the requirements of the CPA to avoid any resulting penalties.

Can a User be Banned?

Currently, some players are able to move around virtually by using a technique known as “GPS spoofing,” which feeds the game false signals to simulate forged movements. For example, a user in England could use this technique to hunt for Pokémon in Montreal. However, the application’s developer considers this technique to be cheating. In this situation, should the developer be able to ban a user without giving them a refund for any purchases made? In cases where the user is also a consumer, the developer would not be within its rights to close the user’s account, because such an action would represent a unilateral modification of the contract, which is prohibited by the CPA, at least in Quebec. Furthermore, the termination of the consumer contract should entail a refund of any purchases made in connection with that contract. The application is still very new, but it is highly likely that this situation will arise in the near future.

Waiver of Liability and Litigation: Clauses to be Defined

Is the arbitration clause which requires all parties to submit any potential dispute to individual arbitration valid? In Quebec, such a clause is prohibited under the CPA. Once again, the question comes down to determining whether or not we are in the presence of a consumer contract.

Finally, is the clause that releases the developer from liability for any damages valid? Under the Civil Code of Quebec, liability can only be excluded for material damage caused to another person, but not for physical or moral injury. However, since all individuals need to be reasonably careful at all times, the chances that a person will win their case against the developer are slim, because that person should never venture into “dangerous” territory.

Our strategic internet team would be pleased to assist you and advise you on the legal issues surrounding the creation of your mobile application.