The worldwide phenomenon that is called Pokémon Go is not only an interesting hype from a sociological perspective, but also from a legal point of view. The virtual reality game seems innocent at first glance: people are trying to catch Pokémon on a sunny Sunday afternoon, and get some fresh air as a side effect. However, due to the fact that the players only pay attention to their smartphone, and not to their surroundings, some serious things have happened. These include traffic jams, car crashes, and even the loss of life. It is only a mater of time before the first court cases against the creators of Pokémon Go are filed. As far as we know now, at least one court suit is filed in New Jersey over trespass of property: a tort well known in common law systems.
It will not always be easy for courts to decide in such matters in which the makers of Pokémon Go are held responsible for suffered damage. First, because it are primarily the players who cause the damage, and not the creators. Second, there hardly is any legislation on liability that originates from a virtual –non existent- world.
Let us be honest, the man who filed the court suit in New Jersey complains about the existence of a Pokémon in his backyard that causes people to trespass his land. We talk about a Pokémon that is not visible nor touchable in the real world. In case you have forgotten: Pokémon are fictional characters and not real beings.
All this concerns a new technological development, and it will take some time for legislatures to catch up with this (if they want to in the first place). In comparison, when internet gained its popularity, there was no legislation at all concerning the digital world. The first internet users created their own ‘netiquettes’: some sort of self regulation in which the users promised to behave themselves. Only when the ‘problems of the real world’ such as digital crimes, defamation, hacking, violations of intellectual property and privacy became more serious, laws were adopted and changed to also apply in the digital world.
A more recent comparison would be the serious concerns about the consumer usage of drones. Only recently, we see some laws emerging that restrict the free flying around of such products when used by citizens.
In the absence of any specialized law, it is up to the courts to fill the legal gap with their interpretation of existing laws and jurisprudence. Now, with the status quo in legislation, how could a court possibly respond to claims regarding virtual reality games?
After all, in their General Terms, Nianic Lab is quite clear in the responsibility of the Pokémon Go app user:
‘During game play, please be aware of your surroundings and play safely. You agree that your use of the App and play of the game is at your own risk, and it is your responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies as you deem reasonably necessary for any injuries that you may incur while using the Services. You also agree not to use the App to violate any applicable law, rule, or regulation ….’
As I see it, there might be two ways to walk. First is indeed by using the classic concepts of tort, as developed in the common law spectrum. In case of the trespass of land, it is widely accepted amongst the common law courts that the mere fact that someone enters your domain without permission, even if there is no true damage, is a violation of the law and reason for a small damage compensation. However, Pokémon Go is not the one trespassing, en the Pokémon who are in the backyard of the claimant are not real. So that will require some creative legal reasoning by analogy. The idea of analogy in law is that the verdict in a previous case can be applied in the current one due to the fact that the underlying principles are the same. This would mean that the Court has to accept that it does not matter anymore whether trespassing is a physical thing, but can also be done in a virtual way, since the principle is equal: it leads to a violation of privacy and hinder.
A second option might be to file a lawsuit against the creators of Pokémon Go over negligence. To claim damage compensation based on the tort of negligence, a reasonable man should be able to foresee that the launching of Pokémon Go would lead to damages. However, when related to product and services law, such negligence is usually demonstrated when a company makes mistakes in the warning instructions, or obviously makes a mistake in the production process. Well, as we have seen above, the Pokémon Go user is firmly warned, and I guess that there is noting wrong with the appearance of Picatchu.
The only think that might help here is that the claimant would be able to demonstrate that despite the warnings of Nianic Lab, a reasonable man could still foresee that in the case of such a success formula wherein the real world is covered by a virtual world, damage is inevitable.
All in all, I expect it a mater of time before Pikachu and his friends are the main characters in some serious court rulings. And as long as there is no specified law or jurisprudence on liability regarding virtual realities, the courts will have to be quite creative in solving the obvious problems.