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A Legal Primer for Pokemon GO

A Legal Primer for Pokemon GO

Pokemon Go has officially arrived in Malaysia. This augmented reality mobile app game has taken the world by storm and become a worldwide phenomenon since its debut in July 2016. It has more daily active users than Twitter and is fast becoming one of the most downloaded mobile app games ever.

Pokémon Go is an augmented reality game that uses GPS on smartphones to identify players’ (in the game, such players are called “trainers”) physical location and shows trainers a map of their real-life surroundings.

The game combines real-life surrounding places such as parks or buildings with virtual characters or objects that appear on the smartphone. The goal is to collect and train virtual Pokémon characters. The more Pokémon the trainer catches, the higher his or her ranking rises.

Like all things, what comes with a wildly popular and innovative technology is always a series of fascinating legal issues that it raises. For Pokemon Go, some have raised concerns about its impact on privacy, property rights, trespass, public safety and liability.

To make matter worse, the game has been linked to serious crimes such as kidnapping, robberies and sexual offences.

Privacy

When it was first launched, the Pokémon Go app requested permission to access and control all of the data associated with the trainer’s Google account (including emails, calendar entries, photos and even stored documents).

This had caused some privacy concerns to the trainers and Niantic (Pokémon Go’s developer) has since remedied this by restricting access to only Google IDs and email addresses. However, the app still tracks the location data every time a trainer uses the app.

Due to the nature of the game, most trainers leave the app and GPS on at all times while waiting for some rare Pokémon to appear. This means that, effectively, the movements of trainers could be tracked whenever and wherever they go. The app has access to a lot of data which if falls into the wrong hands, could lead to a privacy nightmare for trainers.

The app also has a feature which places “gyms” at certain locations to attract trainers to battle against each other.

There are news reports claiming that gyms that are placed at private residences and business premises have attracted dozens to hundreds of trainers, which potentially infringe the privacy and peace and quiet enjoyment of individuals and businesses.

Also, as the app allows trainers to turn on their cameras when playing the game, there is a possibility that perverts or paedophiles may use their cameras to take pictures of girls or young children in public places on the pretext of playing the game.

Trespass and Unlawful Assembly

The game also places PokéStops at certain places that invite trainers to catch Pokémon at PokéStops.

While most PokéStops are found in public places, do be mindful that not all public places are freely open to the members of public without any form of restrictions.

For example, you cannot simply walk into the military bases, prisons and certain government-controlled offices without a proper permit. Anyone who does so can be found guilty of wilful trespass on government property under Section 22 Minor Offences Act 1955 (Revised 1987).

For PokéStops that are found in private residences, you are also not allowed to climb over the fence or gate of your neighbour’s yard to catch Pokémon, as that would constitute a criminal trespass on private property under Section 441 Penal Code, which if convicted, you can be jailed up to 6 months or fined up to RM3,000 or both.

If there is a wake or funeral proceeding, you can be found guilty of criminal trespass if your act of entering the area insults the religion of any person or disturbs the performance of a funeral ceremony, and you can be jailed up to 1 year or fined under Section 297 Penal Code.

If you together with a group of friends (more than 5) gather at a place, all of you might commit a crime of unlawful assembly, if your intention is to commit an offence there or if the police ask you to leave but you stay on and you resist the execution of any legal process by the police. You and your friends can be jailed up to 6 months or fined under Section 141 Penal Code.

Nuisance

Even if you do not walk into someone’s house but you loiter around the perimeter of the house and create a lot of noise late into the night, the house owner can sue you for the tort of private nuisance if your activity interferes with his quiet enjoyment and use of the house.

Both trespass and nuisance are also civil wrongs which allow the property owner or lawful occupier to sue you for compensation. If you cause any property damage, you will also be responsible for that.

Pokemon Go Developer’s Liability

It has also been reported that some trainers had suffered injuries while playing Pokemon Go (running into physical surroundings such as trees or lamp posts, getting into car accidents, falling off cliffs).

Can the trainers sue Niantic for such injuries by arguing that it is predictable that trainers would stare at their phones while walking distractedly and ignore oncoming cars and natural hazards?

Such argument might be weak, considering that Pokémon Go has put in place certain warnings and safeguards to warn trainers “be mindful of surroundings and play at their own risk”. This is very much like if an individual gets hit by a car while text-walking, and assuming no fault on the part of the driver, the individual only has himself to blame for his injury.

The Terms of Service also includes disclaimers against any damage, injury or death that may occur during the use of the game. All trainers are required to agree to the Terms of Service in order to play the game.

Pokemon Go Occupiers’ Liability

Some small businesses and organisations are riding on the popularity of Pokemon Go by paying the game a daily fee for items called lures, which attract more Pokémon and trainers to their premises, or putting up notices to “welcome Pokémon trainers”.

While it is not illegal to carry out such activity, business owners should bear in mind of their occupiers’ liability, which requires them to take reasonable standard of duty of care in all the circumstances to see that the visitors will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the owners to be there.

If the trainer suffers any injuries while he is on the premises, the owner of the premises will be responsible if he is found to have been negligent.

Islamic Law on Pokemon Go

If you are a Muslim, do take note that a fatwa has been issued by the mufti in the Federal Territories that all Muslims living in the Federal Territories are prohibited from playing Pokémon Go.

A fatwa is a legal opinion or learned interpretation on a particular issues relating to Islamic law. In Malaysia, a fatwa is legally binding. Any Muslim who disobeys the direction of a fatwa can be fined up to RM3,000 or jailed up to 2 years, or both under the Syariah Criminal Offences (Federal Territories) Act 1997.

It is not known whether the mufti in other States have followed the step taken by the Federal Territories. While it is unlikely that the religious authority will actually take action against Muslims playing Pokémon Go, there is still a risk involved.

In your search to catch ‘em all, please be mindful of the above offences and legal issues. Enjoy the game and play safely!

*****

About the author:
This article was written by Edwin Lee Yong Cieh, Partner of GLT Law – law firm in Kuala Lumpur, Malaysia (+6016 928 6130, [email protected]). Feel free to contact him if you have any queries.
This article was first published in CHIP Magazine Malaysia.
The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.
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