Keywords

1 Introduction

With rapidly developing technologies for content production, more widespread and faster mobile broadband connection, services like live streaming platforms become more and more popular. The fundamental concept of live streaming services entails a streamer (producer of the content) and his/her viewers (consumers of the content, who might interact with the streamer in different ways). In a live stream the interaction between streamer and viewer happens in real time. The consumption of the specific content is therefore time-bound. Other popular streaming technologies that are not “live” include such services like video on demand (VOD), e.g., YouTube videos (as example of user generated content) or Netflix (as example of commercial entertainment product), or music streaming (e.g., Spotify, Apple Music). The focus of this study is set on the live streaming of content. Given its recent raise in popularity and intensified social interaction and user engagement, it can potentially entail more legal issues than the more traditional VOD.

The live streaming services exist either in form of standalone live streaming platforms (e.g., Periscope, Twitch or YouNow) or as live-video features embedded in other services (e.g., on Facebook or Instagram Live) [1]. With the emergence of these streaming services, information production and information consumption behavior of social media users substantially changed [1,2,3,4]. The traditional behavioral patterns usual for watching TV evolved from the “lean-back” media usage to a space- and time-independent consumption and, in terms of live streaming services, to new production and participation behavior [2, 3]. What exactly makes live streaming services so special? Unlike on many other social media platforms, here, the inter-user communication occurs synchronously. The streamers and the viewers communicate in real-time with no time delay [4], which in turn leads to a versatile social interaction and user engagement [1]. Also, the viewers’ motivation has a stronger social and community basis [2, 5, 6]. Furthermore, there is an increasing popularity of live streaming within the e-sports domain [7, 8].

Such developments on the social media market do not only have impact on user behavior and social interaction. In fact, these rapid shifts might have increasing influence on the global economy, politics and legislation. New services and platforms change the structures and conditions of the digital market and economy. Too rapid modifications can be problematic for legal authorities regulating it, e.g., in terms of the competition law [9]. Furthermore, there is an increasing interaction between new technologies or online services and the law. On the one hand, this interaction exists because the law is supposed to set some boundaries for the platforms (e.g., in terms of consumer or data protection, antitrust regulations etc.), while still facilitating the technological progress. On the other hand, new technologies are being developed to actually enforce the law [10], like the Network Enforcement Act passed in Germany in October 2017, obliging bigger social media players (like Facebook or YouTube, hence, Google) to establish an effective reporting system and specific protocols for reporting illegal content (e.g., hate speech) [11]. Another example is the new EU Copyright Directive passed in 2019, which, among others, indirectly encourages platform provides (especially the ones where copyright infringing content is often uploaded by the users, e.g., YouTube) to implement the controversial “upload-filters” [12], which might be seen as a pre-censorship measure.

Given the increasing popularity of live streaming services and the prevalent interaction between technological developments and the law, the question arises what are the legal concerns and challenges in the context of live streaming services? The first part of this research focuses on legal aspects addressed in the international scientific literature on live streaming. In the second part of this paper, publications regarding legal framework in Germany relevant for live streaming services are being summarized. Germany’s legal system is known to be stricter, e.g., in terms of data protection or copyright regulations, than in countries like the USA. Furthermore, with legislation like the Network Enforcement Act, German legislature showed the interest and willingness to take more measures in regulating the social media market. A systematic literature review as well as legal review like this one can help detecting topics of interest within the research community, but more importantly, research gaps as well as disparities between the current scientific research and the legal practice.

2 Methods

In this study, the systematic literature review (SLR) [13] was conducted to identify legal issues and challenges in context of live streaming dealt with by international researchers. The SLR procedure was based on the approach by Okoli and Schabram [13]. The purpose of the literature review was the identification of legal areas relevant for live streaming research as well as contexts in which they are being investigated (e.g., sports broadcasting or education). The review was conducted by one researcher.

The preliminary search revealed rather limited number of publications on the specific topic of “live streaming services” and “law.” The first round of literature research was conducted on December 19th, 2019 in the scientific databases Scopus and Web of Science (WoS) as well as on Google Scholar. While Scopus and WoS are commonly used for literature review and indicate certain qualitative standard of the research, Google Scholar was added to the sources in order to include legal research literature form the USA (especially US-American legal departments publishing primarily on their websites; these articles are not indexed by Scopus or WoS, but might be thematically and qualitatively suitable). The search query was recursively adjusted after the first search revealed some relevant articles, from which further keywords were extracted and used to expand the original query (Fig. 1).

For the first practical screening, only articles in English or German, and the ones with a full text available, were included. Furthermore, articles where no legal aspects were addressed (e.g., when “law” was only mentioned parenthetically in one sentence and not elaborated in any further way), were excluded. Also excluded were papers focusing solely on the P2P (Peer-to-Peer) technology and not live streaming platforms in general.

As for the quality appraisal, included were journal articles, conference proceedings, books and book chapters. Online student theses, blog article or similar postings were excluded. In the second round of the literature research, the references of the relevant publications were screened for further possibly relevant studies (the same inclusion and exclusion criteria as in the first round of research applied). As can be seen in Fig. 1, the literature research yield a total of 109 results, from which 22 were deemed as relevant for further analysis.

For the systematic review, several information pieces were intellectually extracted from the relevant studies. The data extraction included the respective legal areas (e.g., copyright law, broadcasting law), the context of the legal examination (e.g., live streaming in education or live streaming of broadcasted sports events). Furthermore, if available, the territorial applicability of the concerned regulation or law was noted. Finally, if available, the discussed challenges and outlooks were consolidated. The synthesis of the studies was conducted by the respective legal area and context. The review was partially summarized in a tabular form and described in a short summary.

Fig. 1.
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Procedure of the literature search for the systematic literature review.

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Afterwards, a review of German legal framework applicable to (social) live streaming, based on legal literature and resources retrieved from German legal data base “beck-online”Footnote 1 was conducted. In the end, a comparison of the legal areas and possible challenges between international research and the legal status quo in Germany was performed.

3 Legal View on Live Streaming

3.1 Results of the Systematic Literature Review

The literature research yield 22 relevant studies. During the search, no restriction regrading publication year was defined. The publications relevant for this review were published between 2011 and 2019 (Fig. 2), however, no publications on this topic were found for the years 2012 thru 2014. The highest research output was given in year 2017 and 2016. When looking at the countries where the publishing authors were based in (Fig. 3), most of the publications originated in the USA (10), followed by Germany (4) and UK (3). In general, the research output on this specific topic appears to be rather scarce, with the biggest research interest coming from the USA.

Fig. 2.
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Research on live streaming and law by year of publication (N = 22).

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Fig. 3.
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Research on live streaming and law by country of the researchers (N = 22).

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The reviewed literature was further classified by the legal area, context of the legal discourse and, if applicable, the regional focus (Table 1). Regional focus concerned primarily the territory where the discussed laws are applicable. As can be seen in Table 1, the most prominent legal area within the live streaming domain is the copyright law. Most of the reviewed publications either only discuss this legal area or refer to it together with other legal fields. Therefore, the summary of the literature will be structured primarily based on the context of the investigation (see Table 2 for shortly elaborated context categories). In Fig. 4 we can see a graphical depiction of the frequency of legal areas addressed in the reviewed literature. Despite copyright law, the mostly discussed areas were sports broadcasting laws and data privacy.

Table 1. Summary of the systematic literature review.
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Fig. 4.
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Legal areas addressed in the investigated literature.

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Table 2. Literature on live streaming and law by the context of investigation.
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Technology (Infringement Detection Systems).

Four of the reviewed studies include the description of a law infringement detection technology and/or method. Zhang, Song, Li, Zhang, and Wang [14] worked on a copyright infringement detection technology for live streaming videos. Live streaming poses a big challenge for infringement protection, since the content is generated in real-time, while most of the available protection techniques focus on or are better equipped for static content (e.g., ContentID by YouTube). The infringement detection within live streams is particularly difficult due to the more and more sophisticated behavior of the users, who are trying to bypass the detection system (e.g., by modifying the title or tweaking presentation of the video) [14]. Another aspects is the similarity of legal and copyright-infringing videos. Zhang et al. [14] worked on a solution for these challenges and developed a detection system called StreamGuard. It is based on an unsupervised Bayesian network and is supposed to overcome the mentioned challenges by “leveraging live chat messages from the audience.”

In another paper, Zhang et al. [17] again discuss the development of a crowdsourcing-based copyright infringement detection in live video streaming to address these challenges. Their system is based on investigation of clues from live chat messages. According to Zhang et al. [17], their scheme is significantly more effective and efficient than ContentID in detecting copyright infringing live videos on YouTube.

He, Maillé, and Simon [15], address the problem of illegal re-streaming of video streams. According to the authors, the existing solutions are based on watermarking the legal video to track the users who re-stream the stream on an illegal platform. Here, the problem is the fast detection of the illegal re-stream. He, Maillé, and Simon [15] worked on an fast and scalable algorithm for delivery of life watermarked video in content delivery network (CDN), which is supposed to expedite the process.

Horsman [34] addressed the challenges posed by the live streaming platform Periscope when detecting specific behavior in the stream and introduced an examination methodology for this application. This methodology is supposed to support those investigating cases of child abuse in a live stream. The practical enforcement of the offence of child abuse is still very difficult, the presented digital forensic analysis of Periscope’s usage is supposed to facilitate the process.

E-Sports.

The next four studies concerned e-sports (electronic sports), which is a form of competition using video games. With the rising popularity of these tournaments and video games in general, the streaming of (commented) video games on platforms like Twitch or YouTube (Let’s Play) spread increasingly. Simultaneously, new legal issues (mainly copyrights-related) arise. Postel [18] discussed in his study, whether “fair use” defense is applicable in cases of Let’s Play videos. According to Postel, a “court would most likely find that none of the four factors involved in the fair use defense analysis support protecting ‘Let’s Play’ videos” [18]. In the end, he made a recommendation for a compulsory license for streamers in order to balance the interests between the gamer community and the video game companies. The same problem was addressed by Taylor [19], who also discussed the applicability of the “fair use” doctrine to “Let’s Plays.”

Holden, Edelman, and Baker III [30] conducted an in-depth analysis of legal issues that face the e-sports industry in the USA. Interestingly, the discourse addressed not only the copyright law, but also such areas as Player Publicity Rights, Antitrust Law, Labor Law or Employment Law.

Finally, Holden, Kaburakis, and Rodenberg [29], addressed the issue, whether e-sports falls under the definition of “sports,” which could have a meaningful impact on the application of a variety of different federal and state laws to this domain.

Sports Broadcasting.

E-Sports, in terms of streaming of video games, is very popular content produced on streaming platforms. Another content type readily shared with help of the streaming technology are broadcasts of sports events. Here, again, the main problematic legal area are the infringements of copy- and broadcasting rights. In their study, Kariyawasam and Tasi [27] described the development of live streaming of sports broadcasts and its impact on the legal landscape. Furthermore, they addressed several uncertainties within copyright law in Australia. According to Kariyawasam and Tasi [27], “legislative reforms are required in order to balance the public’s ever-increasing desire for convenient ways to view digital materials against the legal rights of the owners of the material, while also aiming to maintain a forward-looking perspective in an attempt to foresee potential technological advancements that may pose considerable challenges to the traditional copyright law.”

Birmingham and David [25] also discussed the development of copyright infringement in sports broadcasting in the USA and UK, and conducted a comparison to copyright infringements in the music industry.

Edelman [28] discussed the potential impact of live streaming on the commercial sports industry. He analyzed, whether commercial sports enterprises have the legal power to stop live streaming of professional and collegiate sporting events (considering the federal copyright law, right of publicity law, and unfair competition doctrines).

Ainslie [26] examined the challenges that sports leagues and organizations face, when protecting their rights to live sports broadcasts. Here, the main focus lies again on the copyright law. Ainslie [26] discusses the “copyrightability” of sports telecasts, the direct copyright infringement liability for live streaming, the potential liability for websites and manufacturers under secondary infringement theories, and, the Digital Millennium Copyright Act takedown notices and safe harbor provisions [26].

Education.

Even though there is a considerable amount of research on live streaming in education (in both, academic and medical context, the latter one being, e.g., live streams of medical procedures), only one publication on legal aspects has been found. Fuller, Mukhopadhyay, and Gardner [24] discussed live streaming for global pathology education and addressed several ethical and legal issues that need to be considered. As for the legal areas, they discussed the copyrights of the streamer and the privacy of the patients.

Content Analysis.

Another topic addressed in three of the retrieved studies were the potential law infringements in the streams on popular live streaming services. The studies were based on content analyses of the streams and considered several possible law violations (like copyright infringement, insult, data privacy, etc.). According to Honka, Frommelius, Mehlem, Tolles, and Fietkiewicz [33], the most common law infringements observed in streams from Germany and the USA were copyright infringements, followed by infringing the right in one’s own picture. Zimmer, Fietkiewicz, and Stock [32] conducted a content analysis of nearly 7,000 streams, from which 1,364 (almost 18%) contained possible law infringements. Most problematic area was again the copyright.

Finally, Scheibe, Zimmer, and Fietkiewicz [31] conducted a content analysis of streams from Germany, USA and Japan The analysis was based on German legal framework, but also US-American legislation was addressed. In total, around 13% of the analyzed streams included some kind of potential law infringement. The most frequent one was, again, copyright infringement (around 80%), followed by not adhering to the minimum age restriction by the user (at least 13 years) and defamation.

Discourse on Legal and/or Ethical Issues.

The remaining studies addressed in this literature review concern general ethical and legal discourse and do not fall under any of the aforementioned categories. Lim and Chik [21] examined the legality of Internet streaming and time-shifting technologies in the context of copyrights and in relation to the rights of ‘reproduction’ and ‘communication to the public’. Their discourse is based on a comparative analysis of the jurisprudence in common law countries and the EU. According to Lim and Chik [21], the judicial decisions are not consistent, however, “they do provide some helpful guidance in our assessment of the relative strengths and weaknesses of the various arguments made on both sides of the divide as well as of the prevailing judicial sentiment towards new technologies.”

Stewart and Littau [35] addressed the problematic issue of privacy and mobile video streaming. They discussed the gap between people’s expectations of privacy in public and the wide-spread and uncontrolled use of mobile video streaming technologies, while the privacy laws cannot stand the pace of these technological developments. They covered the questions about whether people have any legal remedies when they are unwillingly the subjects of a live stream, or, whether the live stream can be protected under the First Amendment. For this purpose, Stewart and Littau [35] examined relevant court decisions and statutes as well as publications by legal scholars.

Sakthivel [20] addressed the popular topic of copyrights, however, took on a different perspective. He investigated the copyright protection of the webcaster (hence, streamer). He offered suggestions how to protect the webcasting (streaming) under the copyright law. This is an interesting take on the topic, since other relevant literature rather addressed the issue of copyright infringements committed by the streamer.

Faklaris et al. [22] explored the legal and ethical implications of (mobile) live streaming based on a review of public polices and human-computer interaction research. They identified relevant challenges in this area, namely, citizen videographers in conflict with the police (protection of free speech against unreasonable search and seizure), surveillance norms (e.g., “nanny cams”) and voyeurism (both concerning the protection of privacy), and streaming of live events (i.e., protection of intellectual property, hence, copyright). The authors also pointed out the problematic issue of global differences in legal aspects (here, especially between the USA and EU).

In their work-in-progress, Jung, Sell, and Stratmann [23] presented a design of an online Delphi study concerning ethical and legal issues of live streaming, which is supposed to involve international experts from seven different fields (like ethics, politics, law, journalism, software engineering, platform operators and users). Their study has two aims, first, to find a consensus about the ethical norms for live streaming in social media, and second, to discuss the derived codes of ethics for live streaming in social media in the context of ethical theories.

Finally, Borghi [16] conducted a discourse about copyright infringements in the streaming landscape by adhering to the legal situation in the EU. He discussed the European case law and several problematic aspects, like the public communication and reproduction rights. According to Borghi [16], the assessment of on-demand and live streaming through the lenses of copyright law is still unsettled.

3.2 Legal Issues with Live Streaming in Germany

The search in the German legal database “beck-online” revealed that the most prominent legal issue within live streaming domain to date is the German broadcasting law and the potential obligation of the streamers to apply for a broadcasting license. There are several critical aspects that need to be considered and clearly defined in order to classify a stream as a “broadcast.” Furthermore, the classification as “broadcast” is followed by more legal implications for the streaming industry, as compared to common telemedia offers [36, 37].

When it comes to broadcasting law, the main issue revolves around the question whether the regulations created for terrestrial broadcasting are transferable to the new services on the Internet without further amendments. Unlike in the past, today any content can be easily spread for simultaneous receipt via the Internet and, more importantly, it is no longer reserved for public and state controlled broadcasting companies, but is increasingly offered by private persons [37]. Indeed, some of them do not do it just for the fun of it, but actually earn their living this way (e.g., within the e-sports domain, [38]). What happens when these private streamers suddenly need to apply for a broadcasting license? Leeb and Seiter [37] investigated this issue in more detail by adhering to the press release by the German Commission on Licensing and Supervision (ZAK), according to which a stream called “PietSmietTV” was classified as broadcasting service and required a broadcasting license. Soon after, the Twitch-Channel “PietSmiet” also received such notice. The first channel (“PietSmietTV”) was streaming 24/7 and the content were reruns of already streamed videos (mostly Let’s Play). The second channel (“PietSmiet”) was a typical Twitch channel with no uninterrupted stream, but irregular live streams (with several days between each stream). Until the proceedings, both channels were viewed as license-free services. However, with classification as broadcast, further restrictions and sanctions can follow, e.g., content-related or of commercial nature. The only channel of “PietSmiet” not classified as broadcast remained the YouTube channel (video on demand) [37]. Hence, VOD is still classified as telemedia and not broadcast.

What is the difference between telemedia and broadcasts? According to the Interstate Broadcasting Treaty (RStV) Art. 2, broadcasting means a linear information and communication service, provision and transmission of offers for the general public for simultaneous reception in moving images or sound along a schedule, using electromagnetic oscillations. Per definition, telemedia is an electronic information and communication service, which is not a broadcasting or telecommunication service. Based on this definition, VOD is easily not classified as broadcast, since the viewers decide by themselves when they want to watch the video. Hence, there is no linearity and simultaneity (viewers have technological influence on the times when the video is played). This also leads to lacking predefined schedule of the broadcast.

Unlike VOD, live-streams are intended for simultaneous reception by viewers at a certain time (chosen by the streamer and not the viewer). However, it is not clear whether they follow a predefined “schedule.” There is rarely a public announcement of a schedule for a live-stream (more like a sporadically streamed content announcement shortly beforehand). Another indicator can be the frequency and regularity of the streams, as it may indicate a consistent schedule. Here, more active streamers providing content regularly could fall under this definition and require a license. There are some exemptions, e.g., when the stream is offered to less than 500 potential users, however, meant is the technological possibility (which is usually given) and not the actual number of viewers. This requirement for an exemption will be rarely met on the Internet. The legal discourse and previous proceedings indicate rather vague and unclear definition of what is a regular broadcast streamed along a schedule. However, there is a possibility for streamers to have more legal certainty, because according to Art. 20 II RStV, providers of electronic information and communication services are entitled to apply for confirmation by the competent state media authority that a service would not raise objections under the broadcasting law [37, 39].

Finally, other legal areas discussed in the literature or being debated in court proceedings are the copyrights of the video games publishers (e-sports) [40], liability questions in case of re-streams of sports broadcast [41], and general re-streaming of a broadcast [42]. Finally, there is some attention given to the youth protection regulation, including restrictions to advertising (§ 6 JMStV, Interstate Treaty on the Protection of Human Dignity and the Protection of Minors in Broadcasting and in Telemedia), the obligation to appoint a youth protection officer (if the service is a broadcast and not telemedia), and establishment of time limits or other technical (pre-blocking) means so that children and youth of specific age groups cannot access any content that is development-impairing [43, 44].

4 Discussion

Recently, many new live streaming platforms emerged online and became very popular among different groups of users. As in most social media domains and with new developments on the digital market, the question arises whether the new trends also bear new challenges and issues of legal or ethical nature. This study was a systematic literature review of international scientific research on live streaming and potential legal problems (N = 22) conducted in order to pursue this question. Furthermore, it entailed a short review of legal issues with live streaming in Germany.

Based on the systematic literature review, the most prevalent legal domain within research on live streaming are copyright and sports broadcasting laws. Hence, the highest interest is given to the commercial side of live streaming, where the regulations and their successful enforcement can lead to more financial gains. This is especially the case in the field of sports broadcasting and e-sports (video games). When considering studies on technologies for infringement detection, only one out of four papers focused on detection of child abuse, while the remaining addressed a better detection of copyright infringements. When looking at investigations including content analysis of streams, the most common infringements are indeed copyright related. Still, it is not feasible to analyze the entire population of live streaming users and the content they produce, which could give a more accurate picture of possible law infringements. There is a possibility that more problematic or disturbing content did not surface during the investigations in question. Furthermore, when disregarding commercial and/or financial importance of pursuing copyright infringements, the remaining legal areas of more ethical importance need to get more attention. These include the personality rights (e.g., data protection of people unknowingly and/or unwillingly included in a stream, protection against mobbing and defamation) as well as child and youth protection. The younger generation of Internet users is more at home when it comes to new trends on the social media market, however, they are also more vulnerable to predatory behavior and potentially more susceptible to inappropriate content. Therefore, more attention should be given to topics like detection of child abuse and control of development-impairing content.

The most prominent issue within German legal discourse was the classification of live streaming as a telemedia offer or a broadcast, the second one entailing more restrictions and requirements (e.g., a broadcasting license). This, however, does not only entail financial interests (e.g., the fee for broadcasting license), but also brings with it more restrictions and control regarding youth protection, which can be seen as a positive development. The retrieved commentaries and court proceedings addressed several critical issues, like the unclear definition of a broadcast and problems with a definite classification of live streaming, however, these will be most probably resolved in the coming months anyway. At the time of the investigation, the search in the legal database for live streaming-related publications did not yield any commentaries discussing the new Interstate Media Treaty (MStV), which will replace the Interstate Broadcasting Treaty and potentially clarify the legal situation of live streamers (e.g., there will be a minimum limit of 20,000 regular viewers to exclude smaller live streaming accounts). The bill will be voted on in the spring of 2020. The new regulation has to become effective in September 2020, since it constitutes the implementation of the amendments (Directive (EU) 2018/1808) to the European Audiovisual Media Services Directive. Future research should investigate the suitability and impact of the new regulation and reevaluate the legal certainty of live streamers.

In the future, more focus should be also set on content analysis (in order to get a better picture of currently pressing legal issues of live streaming) as well as areas other than copyright. The development of infringement detection technologies could entail more pursuit of detecting contents like child abuse or hate speech as well as technological apparatus for effective age control (restricting access to selected contents or platforms for children under 13 or other age groups).

5 Outlook and Limitations

The systematic literature review in this study had no restrictions regarding the publication year of the studies. However, new developments on social media market and legal developments (especially when considering court proceedings) are very time sensitive. Hence, it is questionable whether “older” research papers and the discussed issues are not already obsolete. This is especially noticeable for the review of German legal framework, where many of the published commentaries and proceedings concerned issues with the Interstate Broadcasting Treaty, which will be replaced in the second half of 2020 with the Interstate Media Treaty and, hopefully, most of the discussed problems for live streamers will be resolved. Another limitation could be the language of the analyzed papers, since there are many live streaming services in China and, potentially, many research papers on live streaming in Chinese. Furthermore, the choice of the search query as well as the three databases could have potentially restricted the number of retrieved studies. In the future research more focus should be set to current laws and court proceedings, e.g., in form of a comparative analysis. Furthermore, this legal review only focused on Germany. In the future other countries, or the general legal framework in the EU, should be considered.