Since the game was released in the UK on Thursday morning, swarms of smartphone-equipped hunters, young and old, have hit the streets attempting to catch virtual “Pokemon” creatures.
However, many users may be unaware of the potential legal consequences to their virtual exploits. With the game utilising whole maps of local areas, some residents have found large groups of Pokemon hunters entering gardens and private land.
Our Property Litigation solicitors review the key areas to consider
A note to gamers: Pika-choose where you hunt carefully. Entering land belonging to another without that person’s consent constitutes trespass for which the trespasser may find themselves liable for damages. Although it is unlikely that the occasional misguided Pokemon-hunter will find themselves facing court proceedings for trivial trespasses, repeat offenders may find themselves catching an injunction alongside a Pokemon.
It is not only gamers who should be on their guard. Landowners have a limited duty of care to trespassers on their land to prevent them from coming to any harm caused by its condition or activities on it. If you own a property which finds itself unexpectedly moonlighting as a Pokemon dojo, you should first of all ensure that means of access are properly secured. Any hazards should be clearly signposted and obvious risks mitigated in so far as is possible.
What if a piece of land finds itself a repeat and regular hub for those hunting digitally based fictional monsters? If there is a real and apparent risk that the regular mass gathering of Poke-hunters (or threatened gathering) could cause injury to property or people, if one really wants them Poke-gone there is case law that suggests a landowner can obtain an injunction against ‘Persons Unknown’, prohibiting them from causing the threatened nuisance or trespass. This can also apply to obstruction of right-of-way easements caused by gatherings or their vehicles. It is unlikely that Nintendo, as the producer of “Pokemon Go”, would however be itself liable since it does not encourage trespassing and in that regard is in a similar position to the manufacturers of satnavs, and to protect itself it also ensures that before playing the game a prominent safety warning appears on the screen together with a disclaimer.
For better or worse, “Pokemon Go” is surely the first in a whole new dimension in gaming, in which the gamer’s immersion in the fictional world is blended with participation in the real one. Landowners are well advised to ensure that accessways to their properties are secured as best they can be, to prevent unwanted intrusion. If a landowner, tenant or other lawful occupier discovers a Pokemon hunter on their property they should amicably ask them to leave immediately, and should they fail to do so, they should call the Police in the first instance. At the same time, landowners should use this new phenomenon as an opportunity to take stock of risks on their land and ensure they are adequately guarded against as a measure of good housekeeping.