Is Downloading vs Streaming Illegal?

Anna Lau
Jun 14, 2021
5 min read

Updated: 2 days ago

Author: Anna Lau, Litigation Partner

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

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 or 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 the 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 who 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. Longer data latency typically seen during the age of dial‑up internet meant that video‑conferencing, gaming and streaming were difficult, if not impossible. Streaming only came about after the innovation of broadband.

Many people have the misconception that if one did not download a video, one cannot be said to have possession over such illegal content if it was merely viewed and never downloaded. This is illustrated by the “streaming‑only defence” where it was 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 and show a lack of understanding of how streaming operates.

The “Buffering” and Cache File Factor

In computer science, a data buffer is a segment of memory used to temporarily store data. Streaming refers to delivering digital media in a continuous manner from a source.

Streaming works in tantum with buffering to account for internet speed fluctuations. Most internet sites utilise cache, where data from visited sites are retained for future access.

As a result, offending media will be stored on a user’s device at some point, and can be downloaded, forwarded or distributed. This means that mere streaming of offending materials may lead to criminal and civil liabilities.

For example, operators of stream‑ripping websites may have infringed copyright under section 31(1)(d) of the Copyright Ordinance (Cap. 528) and can face penalties under section 119(1).

Conversely, a streamer who accesses child pornography content, even without downloading it, may still be guilty under section 3 of the Prevention of Child Pornography Ordinance (Cap. 579).

A prosecutor may proceed if traces of offending material are found on a 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”.

Accidental access can arise through inadvertent browsing, hacking, or hidden files. A defence may arise where there is:

Mistaken identity
Lack of criminal intent
No knowledge of content

Such defences must be substantiated with evidence, not mere assertions.

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:

What you do matters: just because an act occurred on the internet does not mean it does not carry real-life consequences.
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.
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.

How Ravenscroft & Schmierer Can Help?

Issues surrounding downloading vs streaming illegal content raise complex questions under copyright and criminal law, particularly as technology evolves faster than legislation. Ravenscroft & Schmierer advises individuals and businesses on legal risk arising from online activity, digital evidence, and technology‑related offences.

If you require guidance on how these issues may affect your situation, contact us to discuss your circumstances and available options.

FAQ: downloading vs streaming illegal

Is streaming illegal if I do not download the file?

Streaming can still result in liability if data is cached or buffered on your device.

Can streaming copyrighted content lead to criminal liability?

Yes, depending on the nature of the content and applicable legislation.

Does intent matter in streaming offences?

Yes, mens rea is a key element, though evidence of stored content may still support prosecution.

Is streaming illegal in Hong Kong if I do not download the video?

Streaming may still carry legal risk even if a video is not intentionally downloaded. Temporary storage through buffering or cache files can occur during streaming and may be taken into account when assessing liability.

What is the legal difference between downloading and streaming?

Downloading typically involves saving a complete copy of a file to a device, while streaming delivers content continuously. However, both may involve storage of data on a device, which may be relevant under copyright or criminal law.

Can streaming copyrighted material result in criminal liability?

In certain circumstances, yes. Liability may arise depending on the nature of the content, how it is accessed, and whether temporary or permanent copies are created on the user’s device.

This article is co-authored by Joshua Chu from ONC Lawyers

Disclaimer: Whilst every effort has been made to ensure the accuracy of this article it is general in nature and does not constitute legal advice of any kind. You should seek your own personal legal advice before taking legal action. We accept no liability whatsoever for loss arising out of the use or misuse of this article.

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