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Watching You Play: Livestreaming Legal Issues, One-Party Consent & Online Gaming

People complain about the real world being "under surveillance." What about the virtual one?

While livestreaming tonight, a player told me in open-world chat, to quote directly:

"If I had your voice I'd kill myself."

I'm debating if this person threatened me, wished me to commit suicide, or wished my death over something trivial like a video game. But what's funny is the next words from him were:

"This is a [expletive deleted] game, bitch."

When I told him he was on a livestream, he told me to kill myself.

What brought this on?

Click on the video above if you want to see it for yourself (time code 4:51 if you're impatient) but the short version is he didn't win an armor piece in a random draw in a pick up group. I'm not making this up. We beat a boss, the boss dropped gear he wanted but did not win, he threw a hissy fit and brought up a vote to disband the instance. When that failed he cursed over open chat. When I told him he was on a livestream, he told me to kill myself.

I reported him. I made the video available as both evidence and as an example of what we put up with in PUGs. I also put it on youtube and twitch as well as saved a hardcopy on my own computer. Anyone that wants to can download and mirror it anywhere they want to. It's really quite easy to do.

Why do I bring this up?
The world can see what you're doing in a video game 24/7.  Even if you aren't livestreaming, people with you might be.

Livestreaming is becoming more and more prevalent. We are entering a time in gaming where the world can see what you're doing in a video game 24/7/365.  Even if you aren't livestreaming, people with you might be, and they're not going to tell you if they are or not. As gamers, we're slowly entering into privacy issues that the real world has to deal with all the time.

One-Party Filming Consent IRL

Some years ago I had lawsuits threatened against me, not to mention physical violence against my person, for a paintball video.

At the time, helmet cameras were not the norm and were in fact quite the novelty. And while filming, I caught a professional paintball player not only cheating, but being a complete and total jerk to other players.  I published what I saw.  In the fallout of the paintball video, I was accused of altering the audio and video, "Michael Mooring" the footage, somehow "CGing" the whole thing, I was told that I would be "hauled off horizontally" if I ever showed up to several paintball fields, one player posting on an open forum he'd take a loaded 9mm to my head and pull the trigger if he EVER saw me again.

The player himself threatened me with a lawsuit.When I lawyered up myself, I found out that where I was filming was, at the time, I was in my rights to film. It's called "One-party consent."

How One-Party Consent Applies in Livestreaming

One-party consent means that if ONE person knows the filming is happening, it's legal IF you are filming in a place that would not be considered private. Locker rooms, bathrooms or similar are obviously considered private and as such you're not allowed to hidden-camera film there. However, since this was in a public place, meaning that anyone could freely access it, I could film all I wanted. Had the owners of the facility told me to stop, and I didn't, that's another story. Since they had not, I was within my rights. No lawsuit, nor any physical beatings nor firearms pointed at my head ever came out of the whole thing.

Massively Gray Areas 

Sony Online Entertainment has said directly that they are 100% behind and cool with people livestreaming or doing "Let's Plays" of their online games. This means that anyone in world can be recording at any given time. Even though they say that videos may not infringe on the rights of third parties, that's a huge gray area.

What exactly is 'infringing on their rights?'

A player tells me to kill myself, I broadcast it live AND republish it later, am I infringing on his right to wish death upon me? Even after he knows I'm recording he does it anyway, so is that infringing?

Is a four-player instance a public space or private?

If this person had said "if I had your voice I'd kill myself" in a "world" channel instead, would this be considered something like saying it in Central Park or one's bedroom?

What if I didn't say I was streaming?

In my case, I told the person I was livestreaming. He obviously didn't believe me, but I did inform him it was happening. What if I didn't? Would I be violating his privacy by livestreaming his voice without consent? The internet isn't defined as any state, let alone 1 or 2 party consent, so that is still an unknown and has yet to play itself out.

As of right now, it's not that much of an issue.

Not yet. However, I can see situations where it will become one. If this person is banned, will he seek to sue me for damages because I caused him to lose playing time he paid for? Can he? If he decides to come find me or threaten me physically, should the police get involved? In theory, if I take his comments as a threat to my person, should I get them involved now as he told me I should die?  If you think that's an overreaction, just look up the term "swatted" sometime.  A lawsuit would be tame by comparison.

Real World Ramifications

Racist, religious, gender and sexual slurs are all par for the course for players in game worlds when they get angry at not getting what they want. Cussing is also done without even a thought, even if it's against almost every user agreement. What if someone's boss heard their employee through a video like this going viral, and fired them on the spot? Some would say it's justice, others would scream foul and "police state" or "big brother!" Ultimately, who would be right? Do I need to remind you of the two boys in custody right now for threats made online in a game?

...like it or not, more people will have their lives ruined for making a comment in something that is "just a game, b#*!%." And when it does, people will scream how its blindsided the gaming industry and nobody saw it coming.

As of now, I don't have answers but this is something that we, as a community, need to discuss NOW. Every person now has the capability to broadcast your in-game actions to the world and record them for posterity.  Any offhanded or flippant comment can be recorded and used in, or out, context against you. Even if I deleted the videos from youtube and twitch, it would still be out there cached somewhere. And like it or not, more people will have their lives ruined for making a comment in something that is "just a game, bitch." And when it does, people will scream how its blindsided the gaming industry and nobody saw it coming.

Wake up, and welcome to reality.

Published Sep. 3rd 2013
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