Game Over for Pokémon Go Developer?

Terms of use and privacy policy of the Californian software company Niantic Labs contain clauses that are inadmissible under German law, according to the vzbv. The vzbv has therefore called upon the developers of Pokémon Go to cease and desist.

Since its release in July 2016, Pokémon Go has captivated German users and – in part through curious incidents – made headlines in the media. The widely praised fact that the game requires movement outdoors has become the downfall of many users.

The game can be downloaded as an app. After the user has logged in via a Google account or the Pokémon Trainer Club, they can catch, train and develop virtual Pokémon and send them into virtual battles with other Pokémon. In addition to user data and email address, players must also enter their location data during registration, so that anonymous play is generally not possible. In this way, Niantic Labs collects numerous personal data. This prompted the vzbv to review the terms of use and data protection conditions of the software company.

Warning to Pokémon Go Developers by vzbv

In the course of its review, the vzbv concluded that 15 of the clauses from the terms of use and data protection conditions were incompatible with German law (press release dated 20.07.2016). Niantic could modify the contract concluded with the user at any time or discontinue services entirely. In-app purchases with real money were also affected. A refund was excluded. Furthermore, the terms of use contain far-reaching disclaimers of liability and warranty. California law shall apply to the application. In the event that consumers do not object in good time beforehand, they are to call upon an arbitration tribunal in the USA in the event of disputes.

The privacy declaration also violated German data protection law, in the view of the vzbv, inter alia through consent declarations that were difficult to understand or overly broad. Personal data may, at Niantic's discretion, also be passed on to private third parties.

The vzbv has now issued a warning to the company and called upon it to submit a declaration on pain of penalty for cease and desist by 9 August 2016. Should Niantic fail to submit a declaration to cease and desist, the vzbv does not rule out the filing of a lawsuit.

Conclusion

Since the software company offers the game for the German market, both terms of use and data protection provisions must be compatible with German consumer and data protection law. If this is not the case, the relevant clauses are ineffective. Should the company not respond to the warning, the vzbv can have the questionable clauses reviewed by a court and can have the Pokémon Go developers ordered to cease and desist.