Pokémon Go: where does the game stop and reality begin?

Pokémon Go, the hugely successful augmented reality game, has caused a stir in the world of property law.
 

The creation of “Pokéstops” – real world locations that offer players the chance to gather items and catch new Pokémon when they visit – has resulted in players of the game congregating around buildings and landmarks all over the world with the hopes of catching a rare Pokémon or stocking up on items.

For some, the increased footfall is welcomed, but for others the augmented reality game poses the risk of trespass, or at the very least unwanted disturbance.

Given how successful Pokémon Go has been, it is safe to assume that new augmented reality games that bridge the gap between gaming and real life will hit the market in the future.

One of the issues raised by experts is where virtual reality and property law meet. What rights does a landowner have to the digital characters and content on their property? At the moment, there is little a landowner can do to prevent characters and Pokéstops appearing on their land, other than put a request to the game developers to remove their site from the game. Until that happens, however, they may find that players continue congregate in the area.

Where rights do become clear, however, is when there is a physical presence on the land, such as when a player trespasses. When this happens, the landowner then has legal options available to them to deal with the unwanted intrusion, though it can also lead to unanticipated responsibilities.

If a person finds themselves on private property without permission, and they injure themselves as a result of a danger on the land, the landowner or occupier of the land may be held liable for their injuries.

There have been numerous reports from around the world of players trespassing onto land in order to catch the virtual characters, or focusing too much on their phone screen rather than the world around them. This creates a risk for landowners and occupiers, as players could inadvertently trespass and potentially expose themselves to dangerous situations.

The occupier of the land could find that a duty of care is owed to the trespasser under the Occupiers’ Liability Act 1984. The Act relates to ‘occupiers’ – not landowners – which means that the person who has ‘control’ of the land is the party that may owe the duty of care.

There are three factors that need to be met to establish a duty of care under the Act:

1. The occupier must be aware of the danger or have reasonable grounds to believe that it exists;

2. The occupier must know or have reasonable grounds to believe that the person may encounter the danger (whether the person has lawful authority to be there or not); and

3. The risk is one that the occupier may reasonably be expected to offer some protection.

If these three factors are met a duty of care will be established, and the occupier will need to ensure that they take reasonable care to avoid any potential injury to a third party – whether the third party is lawfully on the land or not.

What constitutes as ‘reasonable’ will depend on the type of risk. A warning sign might be enough to discharge the duty of care in some situations; where a trespasser is warned of the risk they are considered to have willingly accepted the risk and no duty will be established under the Act. However, depending on the type of risk a bigger response may be required.

Whether future augmented reality games will provide the option for occupiers to remove their specific location from the game remains to be seen, but in the meantime occupiers should ensure that appropriate risk management is in place for trespassers, whether players of virtual reality games or not, to ensure that no cause for liability is established.

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