Pokémon Go could lead to unprecedented legal cases — and it might work in Niantic Labs' favor to do what it can to limit its own culpability before the game sends players to court. That’s according to one law professor, Shaun G. Jamison of the Concord Law School at Kaplan University, who spoke to Polygon about the legal repercussions Pokémon Go fanatics could face if they get overzealous about visiting PokéStops or catching Pokémon, and to what degree the developer is liable for players’ actions.
Stories of police warning Pokémon Go players to stay away have been abundant since the game’s launch, while some have already run into legal trouble in search of Pokémon and PokéStops. Jamison cited a pair of trainers hopping a fence at the Toledo Zoo in Ohio as a prime example of an illegality whose consequences Pokémon Go can’t protect you from.
"If they are guilty of trespassing, the game does not give them any excuse in and of itself," Jamison told Polygon. "The notices from the games specifically tell them to respect other people's property. It may help them with sentencing, but I would not guarantee that outcome [of not guilty]."
In court, the intention behind trespassing is taken into consideration during sentencing. That means that Pokémon Go players who veer off the beaten path in search of Dratini, could help lighten a sentence, if not dismiss a civil case completely.
All bets are off when it comes to scaling walls and walking into people’s backyards, however.
"In a civil case, the trespass must be intentional or reckless or negligent," said Jamison. "So maybe wandering off the sidewalk a ways on to someone's lawn might be defensible, but climbing a fence, not so much."
"Most likely, the alleged trespasser is on their own"
Legally, a player’s actions fall squarely on their own shoulders, not those of Niantic Labs. Players waive their legal rights by agreeing to Pokémon Go’s terms of service — unless they email the developer to opt out of the waiver.
Even without this clause, though, a person’s own actions are hard to blame the developer for. This includes injuries players may sustain during the game. Some reports thus far point to people falling off cliffs while playing and even getting shot at. Yet Jamison explained that Niantic is likely well covered when it comes to legal defenses.
"As a general rule, they are no more liable than an auto manufacturer is for the misuse of their products," he said. "Someone tried suing Google Maps for an injury and they were not successful. Although Google is factually different, it still stands to reason that the user is ultimately responsible to be aware of their surroundings. Most likely, the alleged trespasser is on their own."
It might be tough to force Niantic to remove PokéStops
The same is true for those whose property has become home to a PokéStop or gym. Although Niantic’s website does offer a form to report unwelcome or inappropriate PokéStop locations, current legislation does not require the developer to remove these noted spots from the game. This is despite the chagrin of some homeowners and staff at places like the Holocaust Museum in Washington, D.C., where players discovered a type of Pokémon that felt out of place, considering the facility’s purpose.
Jamison explained that while "Niantic would be very wise to take steps to limit their expose by having an expedited way to remove [PokéStops] and Gyms and increase the distance at which players can utilize the stops and gyms, it could be difficult to legally require Niantic to remove the [PokéStops]/Gyms absent new legislation."
Pokémon Go has yet to send anyone to court, however, so all of this is hypothetical. Jamison himself referred to the game as new, unexplored legal territory. As it stands, however, Pokémon Go doesn’t do much to protect trespassers from the long arm of the law. Climbing a fence onto someone’s lawn to nab that Flareon is still climbing a fence, after all.