Risk Assessment: Pokémon Go

As we have previously reported, one of the greatest challenges in our industry is that technology often advances faster than legislation can respond, leading to increased lawsuits while parties attempt to allocate liability.  See Snapchat article. For this reason, in recent years, technology-based products and services have expanded the boundaries of products liability litigation. This is especially true as companies and consumers enter the world of augmented reality (AR).  Accordingly, at the Monitor, we thought it timely to take a closer look at the latest viral AR craze: Pokémon Go.

For those unfamiliar with the term, AR is an indirect view of reality (i.e. the physical world) enhanced by technology-based sound, video and graphics. Pokémon Go is a mobile version of an augmented reality game, but it is not the first AR game—remember sweating with Wii? In fact, even without knowing it, many consumers are experimenting with AR daily when they use Snapchat’s lenses feature.  This feature on Snapchat allows users to alter real-time video and decorate “selfies” with dog faces, rainbows and even flower crowns, thus augmenting their reality.   The latest installation, Pokemon Go, allows players to move around the real world and capture small graphic animations (Pokemon) via their smartphone camera applications.

Recently, Pokémon Go is making news for two main reasons: (1) its unfathomable rise in popularity across demographics; and (2) the probability it will soon cause users to file lawsuits for myriad claims including personal injury, failure to warn and privacy breaches from cyberattacks.  While both stories may be true, the latter should instead focus on how The Pokemon Company, Niantic (the software developer behind Pokémon Go) and Nintendo (a part owner of The Pokemon Company) have protected themselves against the potential tsunami of lawsuits (and attempted to keep users safe).  The following will provide three useful tips one should consider when releasing, or having involvement with, app-based products and services that are released into the marketplace based on lessons learned from the people behind Pokémon Go.

1. Identify Your Audience

Pokémon Go is a prime example of why it is important to think not only about one’s intended audience for the product, but also the unintended audience.  An unintended audience for products is the group of users that manufacturers—or game developers—did not target when creating the product, but may still owe a duty to. In tort law, a claim will not succeed where a duty did not exist.  However, failing to understand one’s unintended audience may enlarge the body of potential users and, as a result, increase the number of potential plaintiffs with viable claims.

While the nuances of the law may vary from state to state, it is generally the standard that where a product could foreseeably harm others a standard of reasonable care is necessary, and a duty will arise.  Defining the scope of reasonable in an ever-changing (i.e. augmented reality) can be difficult.  When considering a duty of care, the Court will consider whether there was a duty to protect against injuries for someone or something that was not expected (or intended) to be there when the harm occurs.  Furthermore, knowing to whom your company owes a duty will help with tip number two!

2. Understand Potential Claims to Provide Proper Warnings and Prophylactic Features

Similar to identifying your audience, it is of utmost importance to understand the potential claims that users may bring against you.  Considering the “list of horribles” from attractive nuisance to personal injury will assist when you craft warnings that will prevent such claims from gaining traction in court.

For example, when a user opens the Pokémon Go application she receives a warning to be aware of her surroundings.  This warning may defend against failure to warn claims.  Or, if a developer creates a prophylactic feature that deactivates the app where the GPS detects that the mobile device is traveling at a speed above a certain threshold (i.e. the user is playing while driving) may defend against negligence-based claims.  Accordingly, tailoring warnings and features with ones intended—and unintended—audiences in mind will help accomplish tip number three!

3. Protect Your Product and Your Users

Lastly, one should strive to protect one’s users, their private information and your product.  A growing threat across industries is cyberattacks.   See article. It is not surprising, then, that a fertile ground for malicious tampering is an app-based game that creates an accessible pathway for hackers into a user’s mobile device.  In the case of Pokémon Go, some hackers created imitation games to attract users to remote locations where they commit robberies or other crimes.  In other cases, hackers gain access to other personal data stored on users’ mobile devices.

Understanding the growing—and uncontrollable—threat and reality of cybercrime, Niantic has the following disclaimer of liability on its privacy policy page that is accessible via its Terms of Service:

We take appropriate administrative, physical, and electronic measures designed to protect the information that we collect from or about you or your authorized child from accidental or unlawful destruction, accidental loss or unauthorized access, use, modification, interference, or disclosure. Please be aware, however, that no method of transmitting information over the Internet or storing information is completely secure. Accordingly, we cannot guarantee the absolute security of any information.”

By disclaiming that the company “cannot guarantee the absolute security of any information” users are put on notice that any information shared through use with the company is at risk of interception from malicious third parties.  Providing these types of warnings help to defend against potential liability, but also keep users safe by emphasizing that they should be thoughtful about what types of information they permit access to by playing the game.

We will continue to monitor the evolving industry of AR and report on whether any early-filers gain traction in courts across the country as the number of users playing AR games—especially Pokémon Go—continues to rise.