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Meerkat and Periscope: the opportunities and legal challenges of live video streaming

With the launch in February 2015 of the Meerkat app, a whole new area of content use came into focus. Meerkat, and its more recent Twitter-owned rival Periscope, bring to social media the potential for users to live stream video content from their mobiles, while other users can comment in real time. In the words of Meerkat's founder Ben Rubin, the technology permits "spontaneous togetherness".

May 2015

Meerkat has been an enormous initial success, garnering some 100,000 users and US$14m in funding in its first month. Since then, Periscope's growth has apparently been even stronger, and its acquisition is rumoured to have cost Twitter US$100m. These are heavy bets that live mobile video will play an important part in our future. But what legal issues do these new technologies and their users face and what risks or opportunities are there for content owners and marketers?

The sharing of video content, even by live streaming, has been going on for many years and the paths around content liability, including invasion of privacy, copyright infringement, breach of confidence and defamation, have been well-trodden. But additional challenges, both legal and practical, emerge thanks to the live nature of the content and the ease of use of these technologies.

advertising definitionSome of the earliest adopters of the technologies have been marketers.  Already the apps have been used, for example, to showcase new car launches by Smart and Nissan at the New York Auto Show.  While the broadcasting of live content is a powerful new tool, without the ability to edit and clear content before it is shown, advertisers will need to beware broadcasting content which infringes other parties' IP rights or breaks laws (for example around decency or honesty).  In general terms, laws which would usually apply to any piece of video advertising would similarly apply to live content, so there will be a need for marketers to consider and adopt best practices under which the content is used.

Professional broadcasters will typically be obliged by their licence conditions to use failsafe mechanisms when live broadcasting, such as a short delay between the words spoken by the on-screen talent and their broadcast to the public, during which time the producers can block or mask content which may be problematic, such as swearing.  The live streaming environment does not have any such 'red button' and it is much harder for the crowd-sourced approach to content policing (such as the reporting of problematic posts to the platforms) to apply when the content is live.

An organisation already grappling with the implications for their usage polices around the apps is the BBC.  This issue hit the news when veteran BBC disc jockey, Tony Blackburn, started using Periscope during his broadcasts.  The BBC apparently instructed him to stop using the app either to show the interior of its studios or to feature on his show until it had formulated a policy.  However, the BBC has also been experimenting with the apps for live streaming breaking news events, for example, they used Meerkat for some content around the recent shootings in Ferguson, Missouri.  These sorts of apps will no doubt further extend the number of sources of news material as it becomes easier and easier for anyone to broadcast live events they witness.

Platforms may be liable for making available user generated content which infringes another party's intellectual property rights once they are aware of it and do not take prompt action to take it down.  But do the same principles apply where the content is live and the platform is not hosting a copy (though Periscope, at least, keeps a copy for 24 hours)? people using mobile phones HBO has recently sent takedown notices to Periscope about streams of the new series of 'Game of Thrones' being made available via the service.  However, the laws around what amounts to a broadcast were not written with the concept of broadcast by individuals via mobile phones in mind and may not adequately deal with every new use.  Defamation laws may be better future-proofed, as the UK's 1996 Defamation Act already contains a defence for a "broadcaster of a live programme containing the [defamatory] statement in circumstances in which he has no effective control over the maker of the statement".

The English FA Premier League expressed concern in 2014, over the use of the Vine app by supporters at football matches, which allows short excerpts of video content to be recorded and uploaded onto Twitter.  The new availability of live video streaming without limit on the length of the event 'broadcast', potentially creates a greater headache. It is likely to remain in practice as rights-holders seeking to control what ticket-holders do with their mobiles while at the game. At the very least, large scale public events will be reviewing their ticketing policies to see whether the restrictions those contain go far enough. Others are likely to go further, following the USA's National Hockey League's lead and banning live streaming inside arenas from 30 minutes before the start of games.

There is also a broader issue about the regulation of broadcast-like material.  Professional broadcasters are highly regulated, require government licences for their activities and have to comply with strict rules on issues such as advertising and programme sponsorship.  However the easier new technology makes it for anyone to 'broadcast' video content, the more the lines currently drawn by the laws between regulated and non-regulated activities begin to look artificial. The announcement that Sharon White, the new head of the UK's broadcast regulator OFCOM, intends to review UK broadcast regulation in light of technological changes is timely.  Although the prompt for her announcement has been the growth of 'over the top' on-demand content services, the review will be looking at the impact of the internet on the whole audio-video landscape: "We will certainly look at whether there is scope for a lighter approach given the entry of newer players and technology that we wouldn't have dreamt of a few years ago." (FT interview 16 April 2015).

person selecting appsWhatever happens by way of regulation, the use of live video streaming apps will by then inevitably have become an important part of the digital media and content delivery ecosystem.  Content owners, platforms and marketers should already be considering how the issues and opportunities created by these technologies affect their policies and practices.

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Mark Owen

Mark looks at the developing world of live video streaming.

"The sharing of video content has been going on for many years and the paths around content liability … have been well-trodden but additional challenges, both legal and practical, emerge thanks to the live nature of the content and the ease of use of these technologies."