Pokemon Go or "No Go" in Brazil ?

An instant worldwide phenomenon, Niantic′s “Pokémon Go” augmented reality mobile game brought, with its initial launch a few weeks ago, a world of change in people’s lives.  There is no doubt that the game is an instant sensation, and one of the current "hot topics" in the Internet and mobile gaming community.

From the moment that the Nintendo game became available for download, unprecedented changes took place in an also remarkably wide range. From an increase of over 25% on the company’s share value to the increased number of trespassing reports and people tripping over each other, and a peak in the number of typically sedentary young people who are now, somehow, “exercising” thanks to Pokémon Go.

The game experienced  greater than expected success and, while its availability was, a few days ago, restricted to countries such as U.S., New Zealand, Australia and South Korea, "Pokèmon Go" is now expanding into Europe, Meanwhile, Brazilian gamers are enthusiastically anticipating the release of “Pokemon Go” in our country.  

Even the Mayor of Rio de Janeiro posted on his social media channels an invite for the game to be released in Brazil before the Olympic Games in Rio.

However, in a world now immersed in pokémons, gymnasiums and pokéballs, it is interesting to examine how the “Pokémon Go” craze would be interpreted when the game reaches the Brazilian territory.

First of all, regardless of whether the developer of  “Pokémon Go” has any physical presence in Brazil, the “Marco Civil Law” (Law no. 12965/14, a/k/a Internet Bill of Rights) would apply to “Pokémon Go”. As well as other Brazilian laws, such as the Statue of Children and Adolescents (Law no. 8069/90).

Several other problems that could arise to "Pokémon Go" are discussed in one of my previous posts here.  Such issues still appear to be very relevant if a new, and disruptive, app or mobile game "storms" into the Brazilian market.

But other problems may appear as well : To be able to play "Pokémon Go", the user must sign in using his/her google account and allow the app to access their phone’s GPS location and camera. There are worries about digital privacy and security issues whether the developer or any of its affiliates would profit from the use, transfer or sale of big data gathered during the usage of the app, which can include a person’s residence, workplace and daily habits.  

We are yet to pass a specific Data Protection Law in Brazil, but the “Marco Civil Law”  currently provides a general framework for personal data protection that should be considered by the developers of "Pokémon Go". There can be significant data privacy concerns that would, eventually, appear as the game′s frenzy enters into Brazil.

Another equally pressing concerns involve the app′s Terms & Conditions of Use and Privacy Policy, which should, of course, also be adapted to local laws and jurisdiction.  "Pokémon Go" players are quite likely to be viewed as customers in Brazil and, as Brazilian Consumer Protection Law applies to their relationship with the game, its developer and affiliate partners, lack of adaptation could lead to problems with local authorities.

The Terms & Conditions of Use for "Pokémon Go" also exempt liabilities for property damage, personal injury or even death while playing the game. But it is unclear how such disclaimers would be interpreted in Brazilian courts if, for example, an underage player suffers any physical or psychological harm due to extensively playing the game.

And while the game is not yet available in Brazil, several people are worried about the urban violence on the country’s largest cities, such as S?o Paulo and Rio de Janeiro, the latter also counting with an aggravating circumstance that is hosting the Olympic Games. Since the player has to use the phone’s camera to play "Pokémon Go", walking around pointing it in various directions may not be safe here in Brazil, at certain times and locations.

Therefore, it would not surprise us if liability issues appear in Brazil for the developer by simply leaving the user/player vulnerable to street thefts, which are unfortunately common in those cities and the country as a whole. Also, if players are threatened by criminal to hand over their phones, or even give their account information, law enforcement authorities will get particularly interested with the game, in case accounts with several pokémons become valuable property for resale. 

Furthermore, because pokémons are randomly distributed across the city’s map (essential part to the augmented reality experience), as are the “gymnasiums”, we should expect that the game could raise additional problems in certain city neighborhoods, particularly regarding the exposure of the game’s surroundings.  As the elements of the game can be placed inside private property, or in areas considered to be dangerous to the players (such as some "favelas" in the Rio de Janeiro area),

Morever, a pokémon gymnasium in certain city areas city could attract a potentially unwanted crowd during unwanted hours, with consequences for the inhabitants of the region, such as unauthorized or unlawful use of image whether personal (it is possible the appearance of a pokémon on a person’s shoulder for example)  or from the eventual property for commercial advertisement or even to broadcast the very existence of elements related to the game on social networks.

Law enforcement agencies and authorities in Brazil will definitely make requests for the developer to share locations of events or "gymnasiums”, aggregated data from players and other types of identifiable user data, for whatever reason they might deem appropriate.

And if the developer happens not to comply with such requests, its app could be subject to a block, similar to what just happened today (July 19) with WhatsApp in Brazil. The 3rd. time this year !!

It is difficult to predict how Brazilian Internet users would react to a "Pokémon Go" judicial block or ban. Based on the popularity of the game overseas, it may not be pretty.  However, it is possible to use the same Brazilian laws, particularly the "Marco Civil" to overturn a possible ban, and as guidance to adapt the game to Brazilian laws without harming the user experience involved.

While technology evolves, several new legal issues appear as well.  Even if some authorities and judges might have a difficult time adapting to the new world of augmented reality gaming, Brazilian Internet law has matured significantly since the "Marco Civil". Everyone is looking forward to "Pokemon Go" in Brazil, and a "No Go" can be avoided.

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This post was written with the collaboration of Jo?o Renato Santos da Cunha. Feel free to comment, or like it, if you find that this post was an interesting read.