Are augmented reality games like Pokémon go enticing people to trespass?

Does Pokémon Go entice people to trespass on private property? A lawsuit filed in California against Pokémon Go asks this question.

By Asheeta Regidi

Does Pokémon Go entice people to trespass on private property? A lawsuit filed in California against Pokémon Go asks this question.

The lawsuit claims that Pokémon Go had placed Pokéstops and Pokémon gyms on the private properties of people around the country, without their permission. The plaintiff in this case, Jeffrey Marder, had strangers gathering outside his home with their phones, and at least 5 of them knocked on his door asking if they could ‘catch’ the Pokémon in the backyard of his house.

Marder alleges that this unauthorized placement in his house caused a nuisance to him and several others similar to him, and has demanded collective damages for all the affected persons. Marder also takes issue with Niantic’s profits of USD 35 Million, alleging that it amounts to ‘unjust enrichment’, or profits derived at the expense of another. The main question, which the Court will have to deal with, is whether Pokémon Go encourages the trespass caused by the players.

Niantic’s current position on player’s trespass

The Pokémon Go Terms of Service on Niantic’s website places the entire onus of trespass on the players themselves. The Pokémon Go app also warns people against trespassing on private properties, and a recent update to the game was accompanied by a warning to this effect.

Under the Terms of Service, the players have agreed that they’re playing the game at their own risk. The players agree not to trespass, and in case of a trespass or other violation of law, Niantic will not be responsible. This indicates that in the event of a suit for actual trespass, i.e., a person actually, physically entering a property without the owner’s permission; the owner will have to file a suit against the players themselves, and cannot sue Niantic.

The nature of the allegations in this suit are, however, different. The suit is not regarding the actual trespass by the players, which would be prevented due to the contract between the players and Niantic. It instead relates to the encouragement given to players to trespass on property, by placing the Pokémon, etc. on private property without permission. It deals with the possibility of future trespass created by the game, and demands that Niantic take responsibility for the same. This demand may very well hold.

The nuisance to private and public places is foreseeable

The problem isn’t that Pokémon Go is a unique game causing mayhem in the real world. Other augmented reality games have also led to trouble for players, like the arrest of a player loitering near a police station while trying to capture a ‘portal’ on Ingress in 2012. Pokémon Go itself builds on Ingress, using the same location data as contributed by the players of Ingress.

Ingress allowed players to mark locations, like public places, where the game could be played. This has had consequences like a former church, which was initially marked as a public space and later converted into a person’s personal home, being marked as a Pokémon gym and attracting masses of Pokémon Go players.

One player was also reported to have been shot and killed while trying to break into an apartment to find a Pokémon. Given the addictive nature of the game, the desperation of such players, though a little extreme in this example, is predictable.

It isn’t private persons alone who are objecting to the nuisance caused by Pokémon Go players. Others include objections to the placing of Pokémons in the Holocaust Memorial Museum in Washington DC, and the 9/11 Memorial Pool in New York, prompting the putting up of notices prohibiting the playing of Pokémon Go within these areas.

Though these are public areas, the effect of players of games on the sentiments of people visiting such areas, particularly the bereaved, is understandable. The use of such games to harm unsuspecting players is also possible. For example, the placing of a ‘lure’ in the game in an isolated location, to attract unsuspecting players for a robbery was reported.

Augmented reality games are here to stay, so make them safer

The immense popularity of augmented reality games indicates that they are here to stay. When a game requires the player to walk around in the real world, the owner of the game must take into consideration the safety implications of this as well.

Trespass on property is a foreseeable effect of games like Pokémon Go, and merely putting the onus onto the players is not enough. The absolute solution is, of course, that players be less engrossed in the game and be conscious of their surroundings. This is however, idealistic, and Niantic and similar companies need to find better solutions.

One solution is a simple, time-bound mechanism enabling governments, people and players themselves to indicate places where the game cannot or must not be played. These can subsequently be removed. The existing opt-out mechanisms are obviously inadequate.

Another solution is the incorporation of warnings or the automatic pausing of the game when the player is on public roads and other unsafe places, which should be simple enough since the games use GPS.

Finding such solutions will help retain the fun of augmented reality games, responsibly, without becoming unsafe or creating a nuisance for everyone around. If gaming companies refuse to take on this responsibility, they can very well open themselves up to lawsuits everywhere similar to this suit against Niantic.

The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.