South: Pokemon-Go – Legal Problems for Pikachu?

An expert on data protection law, app development and augmented reality law from Reading-based Blandy & Blandy LLP has offered a warning for users on the terms of service of Pokemon-Go.

Joanne Frears of the corporate and commercial team said: "Pokémon-Go offers fantastic augmented reality (AR) opportunities for gamers, but this week it has found itself in hot water. In marketing circles they say 'There’s no such thing as bad publicity', but a player backlash against the new Pokémon-Go terms and conditions; a threatened privacy lawsuit in Germany; a renewed Fatwa being issued against the game yesterday and a launch in Japan today which was followed by government safety warnings and user guidelines being issued has undoubtedly marred the release.

"Let’s face it, when we buy a new game or app, we all just click ‘accept’ when the terms of use pop up. Very few of us (even lawyers) read them and even if we do, most of it is impenetrable legalese (even to most lawyers). So users are faced with terms they haven’t read, but which have a huge potential impact on their gaming experience and on their consumer rights. The Pokémon-Go terms of service, remove the user’s right to file a lawsuit against the developer and force users to arbitrate with no recourse to a court. So, if Niantic loses your data, or suffers a massive data breach, the only choice is to seek arbitration against it. This is costly and so traditionally to share the cost, claimants have been able to bring class actions. Not so with these terms, which bar users from joining others in any sort of class action against the company.

"Would it really matter if Niantic lost your data? Loss of gaming data is annoying, but hardly worth suing over, but publication of your credit card data, your email and location breaches some pretty fundamental privacy rules and it’s not just adults who play. What about children’s data which is lost or breached – all of which is sensitive? When you look at it in this way, the impact of such clauses is clear. It’s a massive side-step to responsibility and it isn’t on.

"Pokémon-Go doesn’t work on a static platform of course, everything is augmented. A user travels through the real world interacting with Pokémon characters as if they are there in the user’s actual environment. In this Pokémon-Go is at the forefront of AR gaming. But, the privacy issues that surround this have not been thought through and just as with Google Glass, the public has genuine concerns about privacy and walk through gaming such as this. As Pokémon-Go augments the user’s real world in play, it reads its environment and the amount of data that could be scraped from this is potentially massive. When you add to this that Niantic can change its terms at any time, discontinue service and change the use of data without user consent, it is no wonder that the Federation of German Consumer Organisations has said Niantic must change its terms or face a claim for breach of German privacy laws. Of course German privacy laws are harmonised with all other EU member states and the UK and it is possible that similar claims could be filed by other data protection authorities.

"Individual users have limited recourse though once they have accepted the terms. There is a basic principle that terms and conditions will not apply unless the party has had a chance to see and read them. Clicking ‘I accept’ is supposed to give the user an opportunity to look at them but it is a flawed system and is open to challenge. I am sure it will be, just as soon as we’ve all caught Pikachu."