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Pokémon Go(es) Too Far?

News 26-04-2016

Pokémon Go’s terms and conditions have sparked controversy as users must opt-out within 30 days of download to preserve their rights to bring court proceedings and class actions.

What started out as a harmless bit of fun has quickly spiralled out of control Poké-mania firmly takes hold and the list of dangers posed by Pokémon Go continues to grow. Recent Pokémon Go induced disasters include multi-car pile ups on motorways, smartphone muggings and falling off cliffs, all in the name of catching the ever-enchanting Charizard.

Pokémon Go players may not realise that they could be subject to further perils in the form of the game’s tightly drafted Ts and Cs. In all the excitement of downloading the game it is no surprise that few people pause to even glance at the Ts and Cs before clicking “I Accept”. The so-called “Arbitration Notice” in the Ts and Cs  has sparked controversy after it was pointed out by The Consumerist last week.

The “Arbitration Notice” clause requires users to automatically waive their rights to any future trial by jury or class action law suit unless they opt out of the waiver within 30 days of downloading the game (by emailing Niantic at [email protected] with an “Arbitration Opt-out Notice”). Users who fail to opt out will be subject to “binding, individual arbitration”.

The clause has sparked a backlash against Niantic, the owner of Pokémon Go, with it being viewed as a denial of justice and a right to a fair trial. Some of this backlash is misplaced for the following two reasons:

Arbitration proceedings do not quite translate into the forum of lawlessness which some people suggest.Arbitration is a private process whereby disputes are determined by independent arbitrators who are bound to apply the law accurately and would not defend Pokémon Go users’ rights any less effectively than court proceedings. The main advantage afforded to Niantic by arbitration is the fact that the process is confidential, thereby preserving the company’s reputation.

There are two carve-outs where users will not be subject to binding arbitration:

a) users can still bring individual actions in small claims courts; and

b) users can still initiate court proceedings in order to protect their intellectual property rights e.g. copyright, trademarks or trade secrets.

The real loss to Pokémon Go users seems to be that they cannot band together to bring a class action and will instead have to bring separate actions which is more expensive and less efficient. This is the latest in a series of claims that Niantic is stripping Pokémon Go users of their legal rights and whilst some claims appear to be well-founded, it seems that criticism of the “Arbitration Notice” may be slightly over-hyped. Nevertheless, users should ensure they read Ts and Cs carefully before clicking accept and take steps to opt-out as soon as possible in order to preserve their legal rights.

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