Posted on July 18, 2016
Protecting Yourself and Your Legal Rights When Playing Pokémon GO
Most mobile games are harmless. When Candy Crush took the world by storm, it was definitely addictive and may have resulted in the occasional sore thumb, but it wasn’t really dangerous. Now, the latest game craze, Pokémon GO, has already put players in harm’s way, since its release only two weeks ago. What are the dangers and how can you protect your safety and legal rights playing Pokémon GO?
The game was launched in the US, Australia, and New Zealand on July 6, and according to The Telegraph within two days was downloaded 15 million times. According to Survey Monkey, the number of daily active users was as high as 21 million as of July 11, making Pokémon GO the biggest mobile game of all time. The numbers are likely to skyrocket as launches are planned in 200 more countries.
The highly addictive “augmented reality” game encourages players to find and catch Pokémon characters in their “real world” environment using their mobile phones. Phones vibrate to indicate when a Pokémon character is “near,” and the player can then use the phone screen to take aim and “throw” a virtual Poké Ball at the character. The characters can also “run away,” encouraging players to chase them. Herein lies the physical danger.
Some players are chasing the fictional characters into oncoming traffic, private property, dark alleyways — and even over cliffs.
Many Pokémon GO-related Dangers Reported So Far
If you think this sounds far-fetched, think again. Within a couple of weeks many Pokémon GO-related dangers and injuries have already been reported, including:
- In Pennsylvania, a mother reported that her 15-year-old daughter was struck by a car while playing.
- In New York, a 28-year-old who was playing the game while driving (!!!) crashed into a tree.
- In California, two players had to be rescued after falling off a 90-foot bluff.
- In Florida, teens playing the game were mistaken for thieves and shot at by a homeowner.
- In Ohio, two players were arrested for trespassing after climbing a fence near the tiger enclosure at the Toledo Zoo.
- So far, three dead bodies have been discovered by players.
- The game’s “Lure Module” has been used by armed robbers.
Who’s Responsible For Players Being In Physical Danger While Playing?
Every time the game opens, players see a warning telling them to be aware of their surroundings when playing. Clearly, some players are ignoring these guidelines.
So if someone gets hurt while playing, who’s responsible?
The Pokémon GO Terms of Service includes the following language:
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 (including but not limited to the laws of trespass)…
The Terms are what’s called a “browsewrap” agreement. Courts often (but not always) enforce such terms.
There’s never any point when creating a Pokémon GO account, logging into the services, or using the services that there are any Terms of Service for the product. They might as well not even exist.
Making Terms of Service hard to find is a very bad idea, because courts are unlikely to enforce such hidden terms. Just putting a link to the Terms in a footer might not be good enough to make these Terms enforceable. Giving sufficient notice to customers is important, and even close proximity of the hyperlink to relevant buttons users must click on might be insufficient.
As the PactSafe blog noted; by July 15, Niantic (the company that released the game in cooperation with Nintendo) updated procedures and is now “prompting new users to accept their terms when downloading the app with an “I ACCEPT” button before logging in.” This may increase the likelihood that a court would enforce the terms — including finding that the game-makers aren’t responsible for injuries.
You Have 30 Days to Opt-Out of Arbitration
You should know that the Pokémon GO Terms of Service includes an arbitration clause that applies to class actions (a.k.a. the Erin Brockovich movie) as well as individual claims. From the consumer perspective, arbitration clauses can limit the ability to seek compensation. For more information about arbitration, have a look at the advantages and disadvantages of these clauses.
Importantly, the Pokémon GO arbitration clause includes an “opt out” — but only for a very limited time: within 30 days after first “accepting” the terms.
Since the game has been out for less than 30 days, all current players can take advantage of this opt-out by sending an email to email@example.com or a regular mail notice to 2 Bryant St., Ste. 220, San Francisco, CA 94105.
You may not ever want or need to sue the makers of Pokémon GO, and there’s certainly no guarantee that you’d win if you did sue. But if you’d like to keep the right to do this and you’ve already started to play, you’ve only got a few weeks to opt-out of the arbitration clause.
And whatever you decide, play safe!
While jumping on this latest gaming craze may be a bit of fun, you should be aware of the dangers, both physical and legal.
Do you really agree to bear all responsibility while playing the game? Even if you decide to play and agree to the full Terms, consider if it’s still worth opting-out of the arbitration clause.
Whatever you decide is best for you legally, always protect yourself physically. Follow the warnings and advice by law enforcement. Never let augmented reality hurt you in reality.