Criminal Law

By Andrew Byrnes

11.07.19

Big Brother is watching – a lesson from the Fortnite live-stream incident

On Monday 8 July 2019, a Sydney man, Luke Munday, pleaded guilty to an offence of common assault on his pregnant partner. The events to which Mr Munday pleaded guilty caused a serious stir when they happened because they were inadvertently live-streamed online for the world to see using the platform Twitch, which is a leading live streaming platform owned by the tech giants Amazon. Mr Munday was an avid player of the video game Fortnite which he was playing prior to the incident taking place. Any parents of teenagers and young children reading this will vouch that Fortnite is a serious worldwide phenomenon.

It’s understood that some of the gamers watching Mr Munday’s live-stream telephoned the police, which ultimately resulted in his arrest.

What this event shows is that in the modern world where we are becoming increasingly connected and video recording through various online mediums such as Instagram and Snapchat becomes the norm – big brother is watching. Alarmingly for the British populace, an article in the Telegraph UK from back in 2013 reports that there was at that time apparently one surveillance camera for every 11 people. As yet, I doubt Australia is anywhere near that level.

So, should we be worried? As an avid watcher of the Netflix series Black Mirror, the thought of everything I do being recorded through technology for the world to see is worrying  (though truth be told, I do not do anything particularly exciting or interesting that would be worth watching – you’d probably only see footage of me at home on the couch Netflix binging or in my office at Aulich – nothing worth writing home about or broadcasting for the world to see).

Taking off my “tin foil hat” for a moment to assess the issue, realistically, the answer from a common sense perspective is that, in some circumstances, the prevalence of recorded footage from either Closed Circuit Television cameras or online mediums can indeed serve a public interest purpose – so long as it is lawfully obtained and does not impact unfairly on the rights of the individual captured.

Domestic violence incidents such as Mr Munday’s incident unfortunately still occur in the community at still at worryingly high numbers, and so hard though it is to put my strong criminal defence lawyer bias aside, the ability of authorities to lawfully prosecute offenders is certainly a positive side to CCTV footage being available.

It can also be a tool used in your defence if you are defending yourself against a prosecution. Very often, a witness’ memory can prove to be fickle and inaccurate, and CCTV footage can act to exonerate somebody if it clearly shows a person not doing that which they are alleged, or, for example, supports a charged person’s defence of self-defence.

Depending on the nature of the footage or if pictures produced from the footage are used, the police and prosecutors may face an evidentiary issue in overcoming the “picture identification evidence” rule under Section 115 of the Evidence Act 2011 (ACT). There may also be considerations about whether the footage was lawfully obtained by means such as a warrant, and whether the footage is unfairly prejudicial to an accused person for one reason or another, such that it ought to be excluded.

One thing us tin-foil hat wearers should also be aware of is that in Australia, there is no clear law allowing a person to sue somebody for a breach of privacy. So, your rights in relation to footage being captured invasively are pretty limited.

So, the upshot of all of this, as Mr Munday found out, is that big brother is watching. But, whether Big Brother watching is a bad or a good thing – depends on what Big Brother was watching and how he was watching it!