On 3 February 2017, two well-known boxers, Danny Green and Anthony Mundine, had their second and, most likely, final grudge match. Television broadcaster Foxtel touted the fight to subscribers, charging $59.95 to watch the match through Foxtel’s subscription television service.
During the fight, Queensland mechanic Darren Sharpe held his smartphone up to his television screen and live-streamed the fight using the social media platform Facebook.
Facebook allows users to broadcast video live. This is often used by news outlets to cover events (notably, the extensive coverage of the Senate hearings for US President Trump’s cabinet nominees). But any user of Facebook has the same global broadcasting capability.
Mr Green’s live stream was immediately shared more than 13000 times. Many people began to follow Mr Green’s broadcast. Soon approximately 150000 people were watching the live-streaming broadcast.
Foxtel were plainly unhappy about this. During the broadcast, a Foxtel employee telephoned Mr Sharpe and asked him to cease broadcasting. This exchange was captured in the live-stream broadcast. Mr Sharpe refused to stop live-streaming and so his Foxtel account was suspended mid-broadcast. Mr Sharpe then noted on his Facebook page,
“Sorry I couldn’t play the last fight, from the bottom of my heart I really am… Foxtel’s obviously a bunch of [expletive], sorry about the language.”
Mr Sharpe realised he was in trouble very quickly the next day because of the significant media attention his actions drew. Mr Sharpe started a “GoFundMe” crowdfunding page to pay for his legal fees in the event of litigation, but as at 19 February 2017 it had only raised $3725 of a $10000 goal. (Mr Sharpe, perhaps, has no idea at least initially as to the cost of copyright litigation in Australia.)
On 13 February 2017 Foxtel announced that it would not take action against Mr Sharpe. This followed an apology published on 9 February 2017 by Mr Sharpe which appeared on his Facebook page:
“Last Friday I streamed Foxtel’s broadcast of Mundine v Green fight via my Facebook page to thousands of people. I know that this was illegal and the wrong thing to do. Foxtel and the event promoters invested hundreds of thousands of dollars to produce the fight and broadcast it. I unreservedly apologise to Anthony Mundine and Danny Green, to the boxing community, to Foxtel, to the event promoters and to everyone out there who did the right thing and paid to view the fight. It was wrong and I apologise.”
Something tells us this was not original drafting by Mr Sharpe. Mr Sharpe’s GoFundMe page now says the money he has raised will go to charity.
Mr Sharpe was lucky. Certain media reports said that Mr Sharpe would be liable for a $60000 fine and five years in jail. The truth is that the Australian Federal Police have more important things to do. In civil proceedings, Foxtel would have claimed a loss of $59.95 for each of the people who had watched Mr Sharpe’s live-streaming of the fight. If that was indeed 150000 people, then the starting point would have been damages of $9 million for lost sales. In addition, there is the case of Paramount Pictures v Hasluck  FCA 1431. This is a trade mark case but is arguably good authority for additional, nominal damages for product devaluation.
Further, s115 of the Copyright Act 1968 permits “additional damages” for flagrant infringement. Mr Sharpe’s refusal to cease live-streaming the event and questioned what Foxtel’s employee and Foxtel were “going to do about it”. Mr Sharpe’s strong language on Facebook directed towards Foxtel upon his service being terminated would not have assisted him. Deterrence of similar infringements of copyright is also a factor for the award of additional damages. Additional damages is a discretionary award but in this scenario could have been very significant. In Nominet UK v Diverse Internet (No. 2) (2005) 68 IPR 131, to look at only one case, an award of damages of $810953 against the respondents was accompanied by an additional damages award of $500000 arising from flagrant infringement of copyright.
We think Mr Sharpe might have had to swallow his pride in publishing the apology on his Facebook page, but if that was the full extent of the ramifications for him, then he got off very lightly indeed.