How do virtual reality games impact your commercial property?

Experts across the world are focusing on property laws and how they will stand up to the growing popularity of reality gaming, following on from the global success of Pokémon Go.  Helen Porter, Commercial Lawyer, advises business and property owners of their rights when trespassing is becoming an increasing concern.

Pokémon Go became a worldwide phenomenon in the Summer this year, and for those who are not familiar with the craze, users are directed to certain landmarks and buildings in their area for them to hunt and ‘catch’ Pokémon Go characters.  While the game has been praised by some for encouraging participants to be more active, others are more divided in their response; namely business owners.  Some welcomed the additional traffic to their premises and therefore their brand and have even dropped “lures” within their business.  For others, the game has posed the risk of potential trespass, or unwanted disturbance at the very least. 

With the popularity of Pokémon Go and the recent launch of virtual reality headsets from the likes of PlayStation and Sony, it is expected that this is not the last virtual reality game we will see.  Digital life will further collide with reality, raising some concerns around the consequences of 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 are clearer, is when there is a physical presence on land, for example when a player trespasses, whether negligently or intentionally.  This allows the landowner to deal with the unwanted intrusion, but can lead to unforeseen responsibilities as well.  A landowner or occupier may find themselves liable for any injury caused while virtual reality players are on their private land, whether they are there with permission or not. 

“Reports have shown augmented reality players potentially putting themselves at risk, and unfortunately their actions could mean others unwittingly find themselves responsible and facing civil action for any injury sustained,” explained Helen.  “This is based on a long-standing responsibility towards trespassers, but playing virtual reality 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.” 

Potential claims could be brought 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 1984 Act. 

Helen concludes: “The legislation relates to ‘occupiers’, which means the person who has so-called ‘control’ of the premises or land; that is the land owner or those currently in occupation. The implications are 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.

“You may be able to get the game publisher to remove your specific site or location from these virtual reality games, but implementing risk management steps in your workplace for trespassers would always be advisable, as they would apply for all situations and not just in virtual reality.” 

To find out more about rules of trespassing you can contact Helen Porter on 02380 717717 or email helenporter@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.