Podcasters’ Guide To Avoiding Lawyers

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Boston attorney Jeffrey P. Hermes asks the question: “Do podcasters know their legal obligations?” The answer to that is largely, well, probably, “no.” Though cases involving Internet content and properties are becoming more regular in the courtroom, the podcast is still virgin territory. Hermes believes that will change, and probably soon.

“There is both a developing and still incomplete understanding in this area,” said Hermes, a partner in Brown Rudnick’s Litigation Department.

But not only are podcasts destined for court dates alongside other forms of Web publications, Hermes says to expect the rules that apply to traditional media to be applied to Web media.

This is an interesting time in the world of media as, for the first time in history, anybody can be a broadcaster, a journalist, an anchorperson, a publisher, a media mogul. Also, if not for the first time, but for the first time in ages, media is once again nebulous and unruly.

The content producer is often without formal training and education. Worse, he typically doesn’t have teams of lawyers to slap him on the wrists before they end up in court. Instead he has a fool for a lawyer, representing himself in Web 2.0 as publisher and litigator, without the credentials for either.

That is, of course, unless he is a thief to begin with, which is just one of the perils of such an open media – anybody can publish, bad guys too.

WebProNews made Hermes talk until his voice was sun-baked gravel under brand new snow tires. By the end of his torture, we had garnered a lot of useful information.

The Limits of Fair Use

“[Fair Use is] a fairly amorphous standard,” said Hermes. “It’s a balancing of several factors.”

Using a portion of someone else’s work depends on how you use it, and whether or not you can support a claim that your use of it is a small part of a larger creative work. There are a number of questions to ask.

In a Vodcast (video podcast), for example, why are you including a movie clip? Are you illustrating something? In quoting text, what percentage of the original are you using?

But most important: Are you seriously interfering with the author’s ability to promote his work? Are you effectively preventing the author from selling the work?

“If so, then this is much less likely to be considered Fair Use.”

See source: Fair Use.


Typically when an untruth is publicly spoken with the intent to defame or cause harm to a reputation, it is considered slander. But on radio, on television, or on podcasts, it is considered published. Once it’s recorded, it’s libel, and that brings a broader case for damages.

“When you bring a case for libel,” said Hermes, “you don’t need to claim special damages. With slander, only certain categories can cause damage. ”

But that doesn’t mean that, once in court, all cases are open and shut. Libel claims, and the extent of damages, depend on a number of factors. A key distinction is between determining whether a statement was made because of malice or because of negligence.

Celebrities and politicians have to prove actual malice, which can win punitive damages. Generally, punitive damages are not available for negligence. In that case, the court looks for proof of actual damages, such as the loss of business, damage to reputation, and emotional stress, rather than deterrent damages. But in order to hold someone liable, the court needs to know if the publisher or author was aware that the statement was false.

“The law does allow the use of circumstantial evidence indicating what the reporter was aware of.”

What about libel by indication, , or leading the reader/listener to a conclusion that is false with true statements? Hermes says this is a hot topic in libel law. And it’s a tricky one.

For example:

A preacher was seen entering an adult products store, followed by a gay bar, followed by a street corner known for transvestite prostitutes. He left with one. Without saying a conclusion, the publisher can lead the reader/listener to it. In reality, the preacher may innocently be inviting people to church, putting up fliers, ministering to an unconventional crowd, and rescuing someone forced into the profession.

“There is a wide variety of opinion on this topic, depending on which state and jurisdiction. You can be liable for statements that are implied rather than expressed. The question is, ‘how is it implied?’

“You publish facts A,B, and C. Is conclusion D an opinion provided to readers, or is it a statement of fact? Courts are reluctant to allow a libel case to go forward based around true statements, though some have.”

And that’s where determining malice, negligence, and damages comes in.

“[Internet libel cases] have been brought, they will continue to be brought. Libel cases involving podcasts have not been brought, but that will change. Precedents in print and broadcast will apply to Web publishers.”

Fortunately, there are significant protections in most jurisdictions for publications that try to make corrections. The Web is treated the same as traditional media, using the “single publication rule.” Though a Website may be able to alter content continually, and take down the offending statement, leaving it up for days or months is not considered publishing it more than once.

“Because the Internet is such a valuable resource for free speech, courts have generally applied [this rule]. Doing otherwise would chill online media. The burden is so severe that they don’t want to chill speech that way.”

Third Party Comments

In broadcasting, the broadcaster is generally responsible for the factual accuracy of guests, like when interviewing someone.

“It isn’t sufficient to say his views aren’t my views,” said Hermes. “You can be held responsible for other people’s statements.”

The first objection to this is for many will be citing the Communications Decency Act, which offers immunity or safe harbor for interactive computer services, such as a Website, an ISP, or a Web operator that serves as a pass-through of content. If you host a blog site, a chat room, or a forum, then you are not held responsible for comments made there.

“Soliciting somebody for a podcast is different. A podcast is not an interactive computer service. You select, promote, and choose to bring their statements to the attention of your listeners. There will be people who try to apply the CDA to podcasts. I have my doubts about how effective that will be.”

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