Along with popularising a new kind of video game, Pokémon Go is generating a host of new legal issues. With millions of players scouring their neighbourhoods to catch Pokémon, it is not surprising that people are complaining of the impact of the game on their property and on their privacy. Along this line, a proposed class action has recently been launched in Alberta to address some issues that arise out of the placement of PokéStops and Pokémon Gyms.
PokéStops and Gyms are in-game features that are placed near various landmarks, including public art, notable buildings and public parks. Players must travel to these locations to access the benefits of the PokéStops and Gyms, which include in-game items and the ability to battle their Pokémon for points. While the players are having fun and some businesses are appreciating the traffic, not everyone welcomes visitors. The statement of claim filed in support of the proposed class action alleges that the placement of a Pokémon Gym by the developer, Niantic, Inc., has resulted in an invasion of “over 100 intruders since July 22, 2016 in an otherwise sleepy hamlet of fewer than 200 residents” (Torrington, Alberta). A Torrington resident has decided to take action, acting as the representative plaintiff in the proposed class action.
The specific legal claims are based on the laws of trespass, nuisance and unjust enrichment. While there are a number of issues that Pokémon Go raises under privacy laws, the claim does not appear to allege that the placement of the Gym has resulted in an invasion of the plaintiff’s privacy.
This case speaks to how technological innovation can raise novel legal issues. For example, the claim of trespass to land requires that the plaintiff prove that the defendant has entered onto the plaintiff’s land. In this situation, only Pokémon Go players are coming to the Torrington Gym and there is no allegation in the claim that Niantic has entered the plaintiff’s land. Consequently, at this point, it is not clear whether the claim is that Niantic is liable for the trespass of players that were lured by the Gym or if the plaintiff is proposing that trespass should include some type of “virtual trespass” for the placement of a virtual Gym on the plaintiff’s property by Niantic.
If the action proceeds, the resolution to these issues will take some time (the claim was only filed on August 11, 2016 and has not yet been certified). However, this almost certainly will not be the only claim related to Pokémon Go or the wave of augmented reality games that is sure to follow.