It’s easy for people to be consumed by the excitement of new technology, as evidenced by the thousands of Australians who have downloaded the new augmented reality game, Pokémon Go. However, budding Pokémon trainers should take a moment to pause before they play and remember their in-game actions could have very serious, real world consequences.
Pokémon trainers should think very carefully before approaching a Pokéstop at a school, police station (as was the case in Darwin) or any other private location.
If you are caught on private property without the owner’s permission, you can be arrested and charged with trespass. Generally, having a ‘reasonable excuse’ to be on the land is a lawful defence to the crime of trespass, but if you do not have the owner’s permission to be on the property for the purposes of catching Pokémon, you are unlikely to satisfy the criteria.
The penalties for trespass vary from state to state, but fines can run into the thousands and imprisonment terms can be up to one year – remember, there will always be another Zubat.
Interestingly, it is an offence for owners to allow their animals to stray onto public land, but Pokémon trainers can probably assume this does not apply to superimposed, digital pets.
Non-Pokémon trainers also need to be cautious, or they could end up on the wrong side of the law themselves.
If someone enters your property without permission to catch Pokémon, you have the right to ask them to leave. You can ask firmly, but it is a crime to threaten someone with violence, even if they are trespassing or threatening to set their Charizard on you.
If they don’t leave or you feel intimidated to approach them, you should call the police, rather than taking matters into your own hands.
Using your phone while driving is against the law, so Pokémon activity behind the wheel is obviously illegal, but you could be facing more than just a fine or loss of demerit points.
If you made driving errors because you were engrossed in the game, you could face charges like careless or dangerous driving, which can carry prison sentences.
Also, if you were involved in a motor vehicle accident and were distracted by the game at the moment of impact, a court could find you were partially or entirely at fault for the crash.
The same principle applies to distracted pedestrians, cyclists who are not paying proper attention and for people who might have otherwise had public liability claims.
The first question a court would ask when considering the consumer rights of Pokémon Go players is whether the developer of the game is subject to the Australian Consumer Law.
This depends on whether the company could be considered to be engaging in business conduct in Australia, following a 2016 case brought by the ACCC against the world’s largest online gaming company, Valve Corporation, the operators of the Steam game platform (see the case study below).
The court would consider a number of factors, including:
- The number of Australian players of the game;
- Whether the company has an office or other property in Australia;
- Whether it transacts with Australian businesses as part of its conduct; and
- The most compelling factor is likely to be whether the game was designed for the Australian market, which it arguably is because it uses local landmarks and isn’t available in every country.
It is therefore likely that Australian players of Pokémon Go would be protected by the Australian Consumer Law. This means seemingly binding terms and conditions of the app could be ineffective in Australia, such as:
- The arbitration clause:
- This term attempts to waive Pokémon Go players’ rights to pursue legal action through court, trial or via a class action and tries to force users with legal complaints to enter into a private dispute resolution process.
- This could be considered an unfair term under the Australian Consumer Law and therefore unenforceable.
- Arbitration agreements are enforceable in commercial contracts (usually between businesses) in Australia, but it would be rare (if not unheard of) for an arbitration clause to be enforced in a consumer agreement, such as Pokémon Go.
- The jurisdiction clause:
- This term states that the Pokémon Go consumer contract is governed by the law of California, which is not subject to Australian consumer protections.
- However, if an Australian court was to find the developer was conducting business in Australia, then it is likely the company would not be able to circumvent the Australian Consumer Law.
- The refund clause:
- A clause of the Terms of Service appears to give the developer complete discretion to terminate a user’s account without warning in a range of circumstances, with no reimbursement of unspent money.
- This is potentially in contravention of the Australian Consumer Law, which entitles Australian consumers to a refund in certain circumstances, mainly if the game is not of an acceptable quality, or the circumstances of purchase were found to be misleading.
- Other unfair clauses:
- There are other clauses in the Pokémon Go terms and conditions which might be considered unfair under the Australian Consumer Law.
- Questions the court would consider include:
- Whether the term causes a significant imbalance between consumer rights and those of the company;
- Whether the term is reasonably necessary to protect the legitimate interests of the business;
- Whether the term would cause the consumer detriment (financial or non-financial) if the company tried to enforce it; and
- Whether the term would be considered transparent or misleading.
However, there is an overarching practical consideration for Pokémon Go players if they have a consumer dispute with the developer. While there may be remedies available under the Australian Consumer Law, players should consider the time and expense involved in taking legal action against a foreign entity and whether the ends justify the means.
Case Study: ACCC v Valve Corporation (No 3)  FCA 19
This is a recent decision of the Federal Court of Australia that would likely be of significance to the developers and players of Pokémon Go, should there be any consumer law disputes.
The defendant, Valve Corporation, owned the online game distribution platform and website Steam, which had more than two million subscriber accounts in Australia. Through its terms and conditions, Valve claimed that Australian players:
- Had no entitlement to a refund in any circumstances; and
- Had no warranties or statutory guarantees of acceptable quality.
The ACCC argued those claims were false, because section 54 of the Australian Consumer Law guarantees that goods must be of acceptable quality and if they are not, the law entitles consumers to a remedy that can include a refund in certain circumstances. The ACCC argued that by making those claims, Valve engaged in misleading conduct in contravention of sections 18(1) and 29(1)(m) of the Australian Consumer Law. But, the court had to consider:
- Whether the ACL applied to transactions between Australian consumers and foreign companies; and
- Whether the online distribution of games involved the supply of goods.
The court found that downloading a digital game was a “supply of goods” and that even though Valve was a foreign company that mainly operated overseas, it could be considered to be conducting business in Australia because:
- It had significant property (data servers) in Australia;
- It had more than two million customers in Australia;
- Its foreign staff provided support services to the company’s Australian customers; and
- It made payments to the Australian bank account of an Australian company as part of its business.
Ultimately, because Valve made representations to Australian consumers, it was said to be engaged in business conduct in Australia and therefore subject to the Australian Consumer Law.