Get Off my Lawn! Pokémon Go and Real Property

Now that the immensely popular App, Pokémon Go, has been officially released in Canada, it has become increasingly common to see young couples, groups of teens, children, and wannabe Pokémon trainers awkwardly maneuvering their way along the sidewalks and trails of in their town with their eyes glued to their smart phones. The game has broken download records and raised Nintendo’s stock price.  Health professionals have praised the game for its potential to improve the physical and mental well-being of its players.  However, with any new fun thing, it’s only a matter of time before lawyers do what they do best, decide to weigh in on the issue, and spoil everyone’s fun.

For the unaware, Pokémon Go is an augmented reality game that requires players to locate items that exist within the app by traveling to the corresponding location in the real world. The app is able to do this by using the GPS capabilities of the user’s smart phone and tracking their real time location. The developers of the app claim that they have taken steps to ensure that Pokémon will not appear over bodies of water or in the middle of streets; however, this still leaves open the possibility that these little virtual pocket monsters will appear on private property. It is interesting is following the possible legal implications of the augmented reality app such as Pokémon Go.

From a criminal perspective, there has been a number of articles and news stories of people doing dumb things all in the name of Pokémon. Locally, the Regina Police Department has noticed these headlines as well and has decided to take a pro-active approach. Here is a link to their recent post that outlines tips on how to stay safe when hunting for Pokémon: Office Jenny’s Tips for Pokémon Trainers.

When it comes to real property, the most obvious legal issue that comes with this new technology is trespassing. A trespass occurs if you go onto another person’s property without a justifiable reason or their permission. Even if nothing is actually damaged on the property, it can still be considered trespassing. While the radius of the character’s vision in the game usually allows the player to catch Pokémon from a far enough distance that they won’t be required to enter private property, this is not always the case. Sometimes a Pokémon may appear in a backyard or field that is not accessible to the public. Any intrusion made onto private property by the player—even if accidental—could be considered trespassing.

An interesting corollary of this how some of the locations picked are sensitive in nature, like churches, memorials, or areas of historical or cultural significance. Social media has seen a number of pictures pop up of more questionable Pokémon hunting decision, like finding a Squirtle on grandma’s casket, or finding a pokestop at Auschwitz. It will be interesting to see if the placement of these augmented reality assets creates legal problems for the developer in the future.

Another legal concept that will be considered in the context of augmented reality is “attractive nuisance”. When it comes to children, there has been a stream of case law that imposed liability if something exists on their property that may cause curious children to come check it out. In the past, this principle has been applied to railroads and ice cream trucks but, it is relatively undeveloped in Canadian case law which makes it difficult to say how a court would treat the wild Pokémon in your backyard even if the injured person is trespassing.

A tool to avoid these issues has been generated by the developer. If you have noticed that a Poke-stop or a Gym has been designated near your property, and the local gang of trainers that congregate in front of your house have became a bit of a nuisance, you are able to fill out a form online to have the marker removed from the game. Hopefully this way, Pokémon Go players can continue to enjoy their quest to be the very best and nearby property owners won’t be disturbed.

Hopefully, this post hasn’t totally ruined the game for any aspiring Pokémon masters. Just remember to use common sense out there, stay safe, and let me know where to find a Pikachu.