Augmented Reality – Go ‘Pokemon – Go’

Pokemon Go

By Kanika Satyan and Manas Ingle

Technology has changed the way human beings lead their day-to-day life. The influence technology has had, especially on the gaming and entertainment sector, whether for the positive or for the negative, has changed the perspective of gaming and entertainment all across the world. From enabling us to play real life games and sports virtually, the innovations in this sector are now enabling us to play virtual games in real life environments. Such developments have been brought about by technological improvements like virtual and augmented reality, which have taken various forms in the recent times.

Augmented Reality (“AR”) is a technology that superimposes a computer-generated image on a user’s view of the real world, thus providing a composite view. This essentially means that AR turns the real-world environment interactive by augmenting inputs such as sound, videos, images etc, thus incorporating reality into a fantasy world. The world saw the application of the technology of AR at its best in the game “Pokémon Go”. It has been estimated that Pokémon Go has received around 500 million downloads in the United States alone. The game uses the phone’s GPS, camera and clock to create an augmented version of real life environment on your phone. It then allows the user (the “User”) to capture, battle, and train virtual creatures, called Pokémon (“Pokémon”), who appear on device screens as though in the real world.

Though this concept of interplay between the real and the virtual world has been appreciated, multiple social and legal issues like breach of privacy, issues related to tort law, etc. have been raised regarding the game, its concept and the manner of usage of AR by the Pokémon Go developers (Niantic). The game requires players to physically move around to catch Pokémon and this may result in creation of nuisance with respect to third parties, often leading to self-injuries as well. Further, Pokémon Go players abide by the rule of “Gotta catch em’all” and hence many a times end up committing trespass. In many cases, Users have disturbed functioning of buildings like churches and hospitals while engaging in the game. Additionally negligent, careless and reckless driving and other acts by the Users have resulted in suits being filed for the tort of negligence as well.

As per the Terms of Service (“ToS”) of the game and app (the “App”), the User before downloading the game accepts and provides his/her consent to the terms of use of the game. This fundamentally puts the liability solely on the User for any act of negligence, nuisance, trespass etc. Niantic is thus by implication disclaimed from liability for personal injury to the Users or property damage due to trespass by Users. Utilising this, some property owners in the US have filed a class action against Niantic, complaining that the intentional, unauthorized placement of in-game items on their properties constitute a continuing invasion of their use and enjoyment of their land. People across the globe and in India also have tried to put liability on Niantic for contributory negligence, nuisance and other tort law infringements. However, through the provisions of the ToS and also otherwise Niantic has continuously disclaimed all liabilities. In the United States, Pokémon Go also attracts the doctrine of Attractive Nuisance under which an owner/occupier of land is held liable for harm caused to trespassing children if he knew or ought to have known that children being attracted to the condition or object on the land, would trespass; yet the owner/occupier had failed to take due care. Hence the question of liability for such injuries caused to children trespassing the property of a person following a Pokémon has been raised in this regard.

One of the other major issues, however, has been that of violation of privacy by the use of AR. Before AR became mainstream due to the popularity of Pokémon Go, its use was restricted to only public places; however now this technological advancement has also been put to use for depicting graphics over private places also. Not only is the tort of trespass being caused because of the same but privacy of third parties is also getting affected, raising severe defence and other security concerns in many countries. Privacy concerns have also been raised by Users who have claimed that the App requires access to a lot of information which is personally identifiable and sensitive information. Further the App continuously tracks the location of the User for the purposes of the game. Though an appropriate privacy policy has been put into place by Niantic, whether all this information is actually required for engagement of a User in the game is a contention that has been raised by many.

In India, several other issues also arose in this regard that resulted in the filing of a PIL in the Gujarat High Court. The Court here issued notices to state and central governments and also to Niantic in a Public Interest Litigation alleging that the game hurts religious sentiments of certain communities by showing eggs in places of worship and asked for a complete ban on the game in the country. Such a complete ban has also been enforced in countries like Iran, Vietnam; countries like Australia, Japan, the US, and in Russia police have been asked to take stern action against those violating the law while playing the game. Further, the Thai government, in consultation with Niantic, has made temples, public and private offices and places like waterways, railways, roadways and wildlife sanctuaries, inaccessible.

Hence, not only in India but all across the globe actions have been taken to reduce the negative effects of the game. However, such restrictions imposed on intellectual property innovation has given rise to the ongoing debate on the development and future of AR in India and globally.

Kanika Satyan is an Associate at Novojuris Legal and Manas Ingle is a 5th year student, School of Law, Christ University and Intern at Novojuris Legal.