Downloading vs. Streaming – Can Watching Streamed Videos Be Illegal?

“I need to stop,” I whispered to myself, as I clicked ‘next episode’.”

- Quotes about streaming

INTRODUCTION

One of the side effects of the advent of faster internet is the proliferation of streaming. With the steady deployment of 5G (fifth generation technology standard for broadband cellular networks) all over the world, gone are the days that video streaming are limited to a special class of computer nerds. Today, from ordinary housewives to retirees, streaming of HD soap operas on their mobile during commute is becoming a common place (even for those claiming themselves not technologically oriented/proficient).

However, as more and more of the lay population is exposed to the Internet of Things, so too are their exposure to e-legal liabilities (which is greater than ever)! For example, when he final episode of Game of Thrones aired, it was reported that over 71 million people had watched it on the first day, with over 75% of such viewers purportedly having watched it via pirated stream or download. To put it in perspective, that is 2.13 Million viewers whom may have committed a crime.

DOWNLOADING VS. STREAMING -- ARE EITHER ILLEGAL?

“Games don’t make you violent, lag does. Save our kids, install faster internet.”

- Quotes about the Internet of Things

Prior to the innovation of fast internet services, it used to be that if an individual wish to view a bootleg (illegally), one will have to first download the entirety of the bootleg from the internet before watching it (as dial-up speeds will mean that your movie will only be able to load one frame at a time). Longer data latency typically seen during the age of dial-up internet meant that video-conferencing, gaming and streaming difficult, if not impossible. Streaming only came about after the innovation of broadband.

Many people all over the world have the misconception that if one did not download a video (where if such content is copyrighted will lead to both civil and criminal liabilities), one cannot be argued to have ‘possession’ over such illegal content if it was merely viewed and never downloaded. This is elucidated by the ‘streaming-only defence’ employed by a number of child porn defence lawyers where they argued that:

“If you “live-stream” a video file in real-time, you don’t have the ability to distribute it. Only if you have a JPG or other digital file are you able to distribute it. Therefore, it can be argued that you didn’t “possess” material simply by streaming it, even though you could view it readily at any time.”

It is pivoted in this paper that such arguments are simply wrong both in law and in tech. The argument also clearly shows that these legal practitioners lacked the understanding of how streaming operates.

THE "BUFFERING" AND CACHE FILE FACTOR

In computer science, a data buffer is a segment of physical memory storage used to temporarily store data while it is being moved from one place to another. Streaming on the other hand refers to the process of delivering and/or obtaining digital media in a continuous manner from a specific source.

Streaming works in tantum with buffering in order to account for fluctuation of internet speeds so that media can be presented in a smooth process. Most internet sites (including streaming sites) will use cache, where data from a site visited is retained in order to enable faster re-load for users in the future.

The way that streaming works, with buffering and cache files, will mean that the offending media (be it bootleg or other contraband items) will be stored on a user’s device at one point of time, which in turn can be downloaded, forwarded and/or distributed.

This in turn will mean that even mere streaming of offending materials may lead to criminal and civil liabilities for the streamer.

For example, operators of stream-ripping websites and cyberlockers are likely to have infringed copyright of works under section 31(1)(d) of Copyright Ordinance (Cap.528) (the “Copyright Ordinance”) as such operators would have enabled a means to distribute copyrighted works without the license of the copyright owner distributes. Under section 119(1) of the Copyright Ordinance, an individual found guilty may find themselves liable for a maximum penalty of imprisonment for four years and a fine of $50,000 for each infringing copy.

Conversely, a streamer who access child pornography content (despite not having downloaded the same) can find themselves guilty under section 3 of the Prevention of Child Pornography Ordinance (Cap. 579 ) (“Prevention of Child Pornography Ordinance”).

The fact remains that a prosecutor may be able to prosecute a case so long as traces (or evidence of traces) of offending material is found on a defendant’s device.

ACCIDENTAL ACCESS OF ILLEGAL STREAMING CONTENT

“I downloaded the wrong Aladdin movie…”

- Anonymous

At the heart of each and every criminal case is the core element of mens rea (aka guilty mind). The test for criminal culpability is in the Latin phrase actus reus non facit reum nisi mens sit rea, meaning, “the act is not culpable unless the mind is guilty”.

The question, therefore, arises what happens when an individual accidentally access child pornography and/or other illegal content. Such a situation can arise from inadvertent browsing, hacking (e.g. botnet attack – where one’s computer is hijacked to commit a crime) and much more.

Typically, a defendant in such case can raise a defence if there is the issue of:

Mistaken identity – e.g. your computer was accessed by a third party who was the real individual who perpetrated the crime; or
Lack of criminal intent – that the viewing was accidental and there was never purposeful consumption of illegal content; or
No knowledge of content – hidden files embedded in files that an individual downloaded (akin to malware).
Of course, to raise any such defence, a defendant will need to substantiate such arguments by real facts (mere arguments will not suffice). Netizens are therefore reminded it is often far better to be vigilant as to what one access than attempt to mitigate a disaster.

CONCLUSION

As humanity move into the digital realm as a race, we should also note the perils that new technology may bring us. Therefore, when surfing the web, always remember:

  1. What you do matters: just because an act occurred on the internet does not mean it does not carry real-life consequences.
  2. Beware of your digital fingerprints: technology has made it where collection of evidence is easier than ever. Accessing illicit data will leave crumbs on your device which is the pathway to disaster.
  3. Beware of what your surf: never access suspicious website and never download suspicious files. It is not mere inconvenience of a crippled computer that is the consequence, your life can similarly be crippled.

Solicitor, ONC Lawyers

Joshua Chu is a Litigation Solicitor qualified to practice in Hong Kong. Before becoming a lawyer, Joshua worked in the healthcare industry serving as the IT department head at a private hospital as well as overseeing their procurement operations.

Since embarking upon his legal career, his past legal experience includes representing the successful party in one of Hong Kong’s first cryptocurrency litigation cases as well as appearing before the Review Body on Bid Challenges under the World Trade Organization Government Procurement Agreement concerning a health care industry related tender.

Today, Joshua’s practice is mainly focused in the field of dispute resolution and technology law.

Aside from his legal practice, Joshua is currently also a Senior Consultant with a regulatory consulting firm which had been founded by ex-SFC Regulators as well as being a management consultant for the Korean Blockchain Centre.

Registered Foreign Lawyer, Gall Solicitors

Matthew joined Gall’s Employment practice as an England and Wales qualified Registered Foreign Lawyer in January 2021 and is an experienced employment lawyer specialising in employment matters. He is known in the market for advising multi-national companies on the full range of employment issues relating to hiring and separating, employment contracts, handbooks and policies, international secondments, transactions and restructurings, labour unions, stock options and incentive schemes, social insurance and welfare schemes, employee fraud, and restrictive covenants.

Matthew also advises employees and individuals on a wide variety of employer-facing issues, including contracts and terms, conduct issues, whistleblowing and separations. He also handles contentious matters such as labour disputes, investigations, director and executive liability, and sexual harassment issues.

Ranked as a “Leading Individual” in Legal 500 Asia Pacific and recognised by Chambers Asia Pacific since 2011, Matthew has been based in Asia for over 20 years and is a regular speaker and panellist at conferences across the region. He received a BA (Hons) in French and German from Oxford University, an MA from SOAS, and a CPE and Diploma in Legal Practice from the College of Law, York, UK.

Matthew was admitted as a solicitor of England and Wales in 1998 and is a native English speaker. He speaks advanced French and German and is conversational in Mandarin.

Partner, Ravenscroft & Schmierer, Hong Kong

Anna is a Hong Kong qualified lawyer and is responsible as a partner at Ravenscroft & Schmierer for the commercial litigation department. Aside from her legal background, Anna is also an advisor to the Ohkims Blockchain Centre in South Korea and Hong Kong qualified lawyer and a regulatory consultant specialized in IT control and compliance.  

Before starting her practice as a lawyer, Anna worked closely with the United States Patent and Trademark Office (USPTO) and US Food and Drug Administration (FDA) on intellectual property and FDA regulatory matters. 

​Since embarking on her legal career, Anna was part of the team that defended a party in Hong Kong High Court proceedings involving the jurisdiction’s first cryptocurrency cases where she leveraged her science and engineering skills extensively to help improve her client’s case’s position. This feat was repeated again shortly after when Anna again leveraged her science background in a healthcare-related tender dispute. 

​Today, Anna is proactively working on various Distributed Ledger Technology related projects where she combines her love for science and technology together with the logic behind regulatory framework.

Associate, Gall

Kritika joined the firm in July 2019 and has previous experience in civil and commercial litigation.

Kritika handles matters in the employment practice as well as the commercial litigation practice.

She was awarded the University Gold Medal for B.A.LLB (Hons.) at the National University of Juridical Sciences, Kolkata, a premier law school in India. She also holds a Bachelor of Civil Law (BCL) degree from the University of Oxford (2018).

She is admitted as a Solicitor in Hong Kong (2021) and qualified as an Advocate in India (2015).