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Beyond Pokémon: property test posed by virtual reality games

Experts across the world are focusing on property laws and how they will stand up to the shift to augmented reality gaming, following on from the global success of Pokémon Go.

Businesses who found themselves inadvertently hosting the augmented-reality creatures were divided in their response to the Pokémon craze. Some welcomed the traffic, but for others the game posed the risk of potential trespass, or unwanted disturbance at the very least.

More virtual reality games are expected to follow, which will see digital life further collide with reality, already raising questions around what may happen in different game scenarios, such as the virtual violence of Grand Theft Auto.

One of the big issues raised by experts is around where virtual reality and property law meet, and the rights of property owners when digital characters or structures appear on their virtual property. Players may be a nuisance if they congregate around a host property, but currently landowners cannot control their property in this virtual world, beyond asking game developers to remove their site from the game.

Where rights do become clear, is when there is a physical presence on land, for example when a player trespasses. This allows the landowner to deal with the unwanted intrusion, but can lead to unforeseen responsibilities as well.

That’s because even where virtual reality players are on private property without permission, if they injure themselves as a result of dangers on that land, the landowner or occupier may be held liable for their injury.

“Reports have shown augmented reality players putting themselves at risk, and unfortunately their actions could mean others unwittingly find themselves responsible and facing civil action for any injury sustained,” explained property law expert John McCarthy of Bowling & Co. “This is based on a long-standing responsibility towards trespassers, but playing virtual realities games may lead more people to inadvertently trespass and expose themselves to dangerous situations, as their attention is likely to be focused wholly on their ‘phone screen.”

The responsibility is under the Occupiers’ Liability Act 1984, which sets out when there may be a duty of care towards trespassers. These are when the occupier:

  • is aware of the danger
  • has reasonable grounds to believe, or knows, that the person will encounter the danger
  • ought reasonably to have thought about providing some protection against the risk concerned

If these three factors are met and a duty is established, then the occupier should take ‘reasonable’ care to avoid any potential injury. A warning sign may be sufficient to discharge the duty of care, but it will depend on the risk.  Where a trespasser is warned of a risk, but continues with their trespass, they are considered to have willingly accepted the risk and no duty will exist under the Act.

He added: “The legislation relates to ‘occupiers’, which means the person who has so-called ‘control’ of the premises or land.  It may be the owner or those currently in occupation, and it can even relate to vehicles.  It’s far-reaching and all companies and organisations should be running a risk analysis to see if they have any potential duty of care.  If so, then signage is the first and simplest answer to tackle the duty of care owed to trespassers, but other dangers may require a bigger response.

“All such games will be likely to have an option to enable you to remove your specific site or location from the game, but it still makes sense to check you have the necessary risk management in place for trespassing players, as it applies in every situation, not just virtual reality gaming.”

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This is not legal advice; it is intended to provide information of general interest about current legal issues.

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