A leading Australian lawyer has warned budding Pokémon trainers to pause before they play, or they could be lured into the potential legal pitfalls of the game.
Thousands of players have signed up since the augmented reality app launched in Australia three weeks ago, with players using their smartphones to find and catch Pokémon.
After another hugely popular weekend, Slater and Gordon Lawyer Emma Aldersea urged players to remember their in-game actions could have very serious, real world consequences.
“It’s easy for people to be consumed by the excitement of new technology, but keep in mind that ‘I spotted a rare Pokémon’ is unlikely to be a lawful defence if you get into trouble in the real world,” Ms Aldersea said.
“The biggest legal risk for Pokémon Go trainers is the temptation of trespass, especially when Pokéstops are located on private property, such as schools or people’s yards."
“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, owners can be held responsible if their animals stray onto private property, but I think Pokémon trainers can safely assume this does not apply to superimposed, digital pets.”
Ms Aldersea also warned non-Pokémon trainers to be cautious when asking trespassing players to leave their property, 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,” Ms Aldersea said.
“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 too intimidated to approach them, you should call the police, rather than taking matters into your own hands.”
Ms Aldersea said motorists could also be charged with serious criminal offences if they were caught training while driving.
“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,” Ms Aldersea said.
“If you make driving errors because you were engrossed in the game, you could face charges such as careless or dangerous driving, which are offences that carry prison sentences."
“Additionally, if you are distracted at the moment of impact, a court could find you were partially or entirely at fault for a motor vehicle accident, which could reduce the amount of much-needed compensation you can claim if you are seriously injured, or could even exclude you from claiming certain types of compensation.
“The same principle applies for distracted pedestrians, cyclists who are not paying proper attention and for people who might have otherwise had public liability claims, such as two players in the United States who reportedly missed safety warning signs and walked off a cliff while distracted by the game.”
Ms Aldersea said it was also a good idea for players to read the terms and conditions thoroughly, to ensure they understood what they were agreeing to and also to double check their consumer rights under Australian law.
“The Terms of Service for Pokémon Go appear to be quite strict, in particular, there’s an arbitration clause that attempts to waive some consumer rights to pursue legal action through the courts,” Ms Aldersea said.
“The developer also claims to have complete discretion to terminate a user’s account without warning in a range of circumstances, with no reimbursement of unspent money."
“However, it is questionable whether these terms would be effective under Australian law."
“Even though the developer is based overseas, the company could be considered to be conducting business in Australia due to the large number of Australian players and the fact the game is designed to be played in Australia."
“If a court found this to be the case, Australian players would be protected by the Australian Consumer Law, which might consider these terms to be unfair and unenforceable."
“But practical consideration must be given to the considerable time and expense involved in taking legal action against a foreign entity.”
Maximum penalties for trespassing in Australia
|New South Wales||Inclosed Lands Protection Act 1901 (NSW) s 4(1)(a),(b)||$1,100 for schools, child care service, hospitals or nursing homes, or $550 for other premises.|
|Victoria||Summary Offences Act 1966 (Vic) s 9(1)(d)||$3,791.75 (25 penalty units) or six months' imprisonment.|
|Queensland||Summary Offences Act 2005 (Qld) s 11(1),(2)||$2,438 (20 penalty units) or 12 months’ imprisonment.|
|Western Australia||Criminal Code Act Compilation Act 1913 (WA) s 70A(2)||$12,000 or 12 months’ imprisonment.|
|South Australia||Summary Offences Act 1953 (SA) s 17A(1)||$2,500 or six months’ imprisonment.|
|Tasmania||Police Offences Act 1935 (Tas) s 14B(2)||$7,850 or 12 months’ imprisonment for trespassing in a house, $3,925 or six months’ imprisonment for other buildings.|
|ACT||Trespass on Territory Land Act (ACT) 1932 s 4(2)||$750 (5 penalty units)|
|Northern Territory||Trespass Act 1987 (NT) s5-8||$3,080 (20 penalty units)|
*Crimes Act 1914 (Cth) s 89(1)
^Public Order (Protection of Persons and Property) Act 1971 (Cth) ss 11(1), 12(1)
#Defence Force Regulations 1952 (Cth) reg 35
*$1,800 (10 penalty units)
^$1,800 (10 penalty units)
#$2.000 or six months’ imprisonment, or both.