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? 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.

Featured Contributor

I'm a gamer. I'm a reality junkie. I'm a cynic. I'm a dinosaur. I'm a writer. I'm so much more than a paragraph can say. You want more? Ok. I started a video game show on the internet some time ago. See, I've played video games since Intellivision and Atari 2600 and PONG back in the day. Retro-gaming doesn't really fire me up as much as seeing how the community ticks. And after seeing way too many "I'm too young to have played this game when it first came out but it MAKES ME SO ANGRY" reviewers who would happily eviscerate my childhood for lulz... yeah I tossed my hat into the ring. the quickly scooped it back up, I'm told I have a bald spot that needs...more »

Platforms Tags livestreammmorpg
Published Sep. 3rd 2013
  • Zachary Welter
    Featured Contributor
    Technically, though, you only have a right to privacy within your own personal space. If you do anything in public it can be recorded without breaching anyone's rights.
  • [[Deleted]]
    It is a very grey area... however as far as I see it, their public places. It would be the same as going to say "put put golf" in a mall. although only those people that choose to pay to play the the little mini golf course can participate however any passerby can stop and see, or more relevantly... paintball, theirs no rule stating I can't stand on the outside of the play pen and watch events unfold, again if I'm asked to leave or a sign is posted prohibiting viewing and or recording then that's a different story.

    In online gaming part of the problem is the "Alt" scene, with 95%+ of the games out there allowing you to make a alternate character with a different name, race, ect for free not only can internet trolls hide behind their screens, but they can make alt characters to do nothing but be an d-bag with, once they've had their fun they can simply switch to their main character and continue on snickering to themselves... or delete and create a new alt to start the whole process over again.

    Maybe the developers should make it so that you can't create alt characters or if you do, they have the same name as your main character, something to tie your identity down and make you more responsible for your actions, because at the end of the day especially if your on a subscription model game, their not going to lose a sub and ban a player for being a tool, that's like saying "sorry, we really don't want your money" so maybe these people should have to pay more, like in FFXI you pay like 14.99/month for your subscription and 1st character, then an extra 1.00/month for every additional character.

    I think Live-streaming, and the like is 100% legit, at least we can publicly flog these tools and give them a taste of their own poison, you don't want to be recorded being a tool... then don't be a tool.
  • Armed_squirrel
    as far as law is concerned, more often than not virtual/digital/internet/phone related things are considered public as "there is not expectance to privacy" due to issues like who owns the network. Technically we are all renting games and internet. On another note, what happened to manners? You know, just being polite to others even if you don't feel like it? That used to be a norm....
  • Mech-Phree_1557
    Featured Contributor
    This article for one is great. It brings up the serious "grey area'" that we as gamers or people who work in the press might have to go through when live streaming.

    Their have been several times when i've been playing games over voice chat and some one has uttered a racial comment here and they think they are speaking with their peers. If I record said comment, am I infringing on this persons privacy?

    In my opinion, if you are in a game (multi-player FPS or MMO online ) you do not have a "right to privacy" since you clearly know that whatever you say can possibly be heard by other people, and it's public.
  • Capt. Eliza Creststeel
    I've had bad game days, but nothing warrants railing at someone. Too many man-childs or women-childs out there who think that because they are safely in their basements that they can spout off at the mouth. Ironically, some of most abusive people I've met online fall back on the 'hey man, it's just a game' after being called on the carpet for their douchery.
  • Steven_6789
    The dynamic that I find interesting here is that many are failing to realize how the internet is changing. Sure, in years past it was the perfect anonymity and even now, it still enjoys quite a bit of anonymity (at least more so than in-person) but it isn't as private or exclusive as it once was. As people move their lives and livelihoods into the web, that anonymity is substantially less and many fail to realize this. Case and point of the situation you witnessed, Tyger, it would now have been less public for that gamer to scream obscenities at Time Square than in that instance because now, his actions are on the web and forever it shall remain.
  • pat_3974
    personally the worst comes out from those online this is probably the best proof that the internet is not personal enough
  • Kitten Mother
    Of course that happens when I wasn't watching the stream. >_< I'm sorry this happened. :( ...I swear, these people need to grow up...
  • TygerWDR
    Featured Contributor
    I'd settle for just holding them publicly accountable
  • Rothalack
    Master O' Bugs
    It's just so hilarious how people act behind a screen. Its definitely something you just have to accept. Maybe one day these kinds of people will just grow up, but probably not. It's also funny how the guy that was talking crap at you sounded like a grown man... A grown man with a pre-teen brain. I just laugh at people like this.
  • TygerWDR
    Featured Contributor
    it WAS a grown man, acting like a 5 year old. "I didn't get my drop, so I'm gonna stop playing!" Interestingly, earlier that night we had a guy power through an instance, get the drop he wanted, and leave the group mid-fight. "FYGM" is a rally cry lately, it seems.

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