Pokémon Go: Privacy and terms of use

This is already the third article from me on the subject of Pokémon Go. But readers have to put up with that, because the game is now on everyone’s lips. And it’s successful, too. It was just announced that Pokémon Go generates more in-app purchases than all other mobile apps combined. This is already enormous and makes it pretty certain that lawyers will really have to deal with the issue soon.

At the same time, there are also more and more negative reports, in Germany from data protectionists, among others. My own opinion on this is somewhat split. While data protection should certainly be a high priority, care must be taken to make truly “fair” comparisons. For example, the well-known magazine CT published an analysis by Henry Krasemann, the head of unit at the Independent Center for Data Protection in Schleswig-Holstein. Their conclusions are quite in the approach of a little scaremongering, and especially also, not a peculiarity of Pokémon Go.

For example, there are numerous apps, services and other providers from all over the world that German consumers can use, whose T&Cs are often not effective in Germany, but which cannot be complied with with the help of the German judiciary, at least for end consumers and within a manageable cost framework. This also applies, for example, to the problem of purchasing virtual goods, which, as mentioned above, take place in large quantities in Pokémon Go. From a purely formal legal point of view, it has actually been clarified among lawyers with my area of expertise that

1. Virtual items that have not yet been used, such as “unused boosters”, “unused virtual currency” and the like would have to be refunded at a reasonable rate if, for example, the usage agreement with the end user is terminated. In purely logical terms, this means that the provider of the online game or mobile app must provide compensation for all the monetary payments for which it has not yet provided any consideration in the form of playing time or game benefits.
2. Invested time in Free 2 Play games is generally not replaced or does not lead to compensation.
3. Used items whose effects have expired, also do not give rise to compensation for damages

There are many possible variations here, and in the end it all comes down to the details. However, one problem remains: asserting one’s supposed rights against the provider or enforcing them in the end. And I can tell you from my own practical experience that we already have this problem with companies within Europe. Niantic in the US is likely to act even more uncooperative here, without pressure from the press or the like.

Pokémon Go should also be compared fairly with other products when it comes to data protection. Data protection, especially with products like Pokémon Go, should also be a question of one’s own sanity and parental supervision. There’s no need to mess around with data protection agreements or anything like that. Those who are now lamenting privacy issues with Pokémon Go don’t realize that providers like Unity (who make the game engine) or analytics providers are present in the vast majority of apps, often not with “evil” intentions at all, but only to analyze things like “user experience”, “retention” or “payment fraud”. The same people who whine about Pokémon Go allow their children to constantly publish their own location with the help of the Facebook app or regularly publish their user behavior on YouTube without any control. These same people are also mostly unaware of their own data when they use an online account and disclose their payment streams or use video streaming on their smart TV, revealing their entertainment habits to providers.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.