CIO upfront: Pok?mon Go craze raises questions on how augmented reality affects real-world rights and responsibilities

Augmented reality technology is another test for the law’s age-old struggle to keep up with innovation. Toby Gee, MinterEllisonRuddWatts

Augmented reality (AR), the technology behind Pok?mon Go, creates a virtual world that overlaps with the physical, so users can interact with a combination of both worlds in real time. AR has been flagged as a technology poised to profoundly affect the way we interact with computers. Pok?mon Go is the recent success story of AR games, catapulting AR technology into the mainstream. However, it is not the first, nor is it the only example of AR.

The technology has been around since the 1960s; other games for smartphones have preceded Pok?mon Go (including a New Zealand AR children’s game); and tech heavyweights like Google and Intel have headworn AR devices available or in development. The chief executive of Niantic (the company that created Pok?mon Go) has said he wants one day to be able to play Pok?mon Go with contact lenses.

But what happens when this real-virtual hybrid world causes interference with people’s lives in the real world? Can the producers of the technology be blamed for it? How can the law keep up with what might seem (at least to some lawyers) like science fiction?

Virtual objects and real-world property

Pok?mon Go requires users to move around in the physical world to complete tasks in the virtual world – such as catching virtual creatures known as ‘Pok?mon’. So the virtual world of Pok?mon Go influences where users go in the real world.

Given the large numbers of people playing Pok?mon Go, this can have negative consequences. At least three separate class action lawsuits have been filed by dissatisfied homeowners in Canada and the United States, suing Niantic for the disruption caused by players trespassing or requesting access to their properties to look for virtual creatures on their mobile devices. Some churches in the UK are unimpressed with disruptions caused by Pok?mon Go users, and Cologne Cathedral in Germany is reportedly taking legal action after Niantic refused to remove it from the game.

Other complaints have been raised in relation to the location of Pok?mon and Pok?mon Go landmarks, for example ‘Pok?mon stops’ – where the virtual creatures can be found – in places like war memorials. German authorities want Pok?mon stops located past airport security controls deleted, Iran has banned the game entirely, and Israel has banned its military from using it.

So what is the extent of Niantic’s liability for where it puts its virtual objects? The game warns users to respect private property, and Niantic has a complaints process (although it has rejected some complaints). Do these steps absolve its liability? Should there be a positive duty to place stops only in locations where large numbers of people playing Pok?mon Go would not be harmful, or perhaps only on public property? The homeowners’ lawsuits are in the early stages, and with limited information it is difficult to see what legal traction they may have.

AR can influence real-world property rights by affecting people’s actions. There could be other property implications, however, particularly if the technology becomes more prevalent in our day-to-day lives, such that it becomes common to view the world through a device that overlays a virtual world over the real. The appearance of any real-world object might then be affected by the appearance of a virtual object; for example, virtual graffiti could be daubed on buildings. If a billboard is overlaid by different virtual advertising, will the billboard’s owner have legal recourse?

Toby Gee of MinterEllisonRuddWatts

What happens when this real-virtual hybrid world causes interference with people’s lives in the real world? Can the producers of the technology be blamed for it?

Personal injury

Pok?mon Go is played by users holding their smartphone out in front of them, and also, of course, requires users to move around. This combination of activities has proven harmful, with several reports of personal injury from distracted users. Police in various countries have warned against driving while playing Pok?mon Go – for good cause, as a woman was killed in Japan by a driver playing the game. Other concerns exist as to players’ ability to place “lures”, which attract Pok?mon (and therefore users). This has obvious risks if used maliciously: there have been reports of robberies initiated by such a tactic, and concerns about potential dangers to children. The state of New York has banned registered sex offenders from using the app, requesting Niantic to remove Pok?mon Go users who are on the public register (which may or may not prove an effective policy).

Niantic is undoubtedly aware of some of these risks: Pok?mon Go’s terms and conditions include an extensive indemnity clause whereby users agree to indemnify Niantic, and the app warns users to pay attention to their surroundings. The question is whether these steps are enough.

Undoubtedly, with AR technology, users are individually responsible for the consequences of their actions. But conceivably the producer could also be responsible for the foreseeable activity of its players, either individually or collectively. Parties affected by users of a game might find the producer a better avenue for recovering damages than individuals. Such a suit could be extremely expensive: it will involve novel liability issues; there may scope for a class actions; and many jurisdictions might be affected. The scale of users (an estimated 30 million) and the associated profits for Niantic are such that, in some jurisdictions at least, more class actions seem likely.

AR technology is another test for the law’s age-old struggle to keep up with innovation. Of course, the law has already engaged with legal problems from the virtual world, in situations such as cyber bullying, spam emails and digital file sharing (with mixed success). AR throws up a variety of legal issues, not only those discussed here, but issues relating to privacy, cybersecurity, intellectual property and property rights in virtual objects. Time, as well as the way AR technology develops, will tell how the law will address the potential negative consequences of the AR technology so that its positive features can be exercised without undue adverse effects – or at least with legal recourse where they occur.

Toby Gee is a Special Counsel at MinterEllisonRuddWatts, and represents insurers, corporates, government entities and individuals in claims at all levels. He specialises in insurance, professional risks, commercial/contract claims, engineering and construction, product liability and medico-legal matters.

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