A primer on social media law Pat yourself on the back if you've finally launched your organization's podcast. Now all you've got to worry about is whether you're breaking any FCC regulations. While we're still in the frontier days of podcast law, organizations that create and distribute podcasts may soon need to pay attention to rules that normally govern media outlets—like privacy and defamation laws, consumer protection rules and false advertising regulations. This might sound like more than you bargained for when you started your fledgling podcast. "Often the freedom of the podcasting environment can lead people to be very expressive in podcasts," points out Jeffrey Hermes, a partner in Boston law firm Brown Rudnick, which works with publishing and media clients. "Someone on a podcast might not be aware of the rules governing their speech. The question of a podcaster's responsibilities is coming up, and lawyers are starting to watch new media cases to see what might apply podcasts." While podcasts might be thought of as broadcasts in one sense, the FCC isn't getting involved, since podcasts are distributed via the Net. "The FCC has made limited incursions into the Internet, so its communications decency regulations [which govern broadcasters] might not apply," Hermes explains. So, that means if one of your guests says a few of George Carlin's seven dirty words, you probably won't end up with a big fat fine. However, Hermes points out, it won't leave you off the hook for other regulations that govern media outlets. "Podcasts are more like print in that there's a subscription model," Hermes says. It's easiest to think of a podcast as analogous to an opinion column, he says, if you want to understand the legal issues. For example:
Copyright: If your podcast is using material from other sources, like music, movies or books, have your podcaster exercise caution when quoting or sampling such material. Like mainstream journalists, the podcaster needs to avoid running afoul of fair use laws, which dictate how much of a copyrighted work you can use. "Fair use is very murky," Hermes says; for example, there are no strict guidelines for how many words from a source article you might be able to use to stay on the right side of the law. "The general test is whether you are impacting the creator's ability to profit from the work." So, reading half of a New York Times article during a podcast is probably a violation of fair use.
Defamation: Even if it's a podcast guest who maligns an individual's reputation, the organization sponsoring the podcast would be liable for damages in case of a lawsuit. "If you were provoking the interviewee, you might be construed as creating that content," Hermes explains. If your podcast guest simply mouths off on her own, your company or client isn't automatically liable for the defamatory statements. (Incidentally, Hermes says, defamatory statements in podcasts might not be slander—don't assume they fall under the definition of slander because it's a spoken-word medium. Because podcasts are recorded, i.e., a "fixed medium," they fall under libel laws.)
Privacy: Is your podcaster or interviewee blabbing personal information about an identifiable person? "You can't disclose private information when there's no legitimate interest in doing so," Hermes explains. Warn podcast hosts and interviewees to be as careful about divulging personal information about private people as they would if they were on NPR. You should also be aware of the laws in your state regarding the recording of conversations, and whether you have to disclose the recording of an interview to the subject. The statutes that govern the recording of phone conversations would apply to podcasts and Internet telephony as well, Hermes says. (For a state-by-state guide to laws relating to recording of phone conversations, visit the Reporter's Committee for Freedom of the Press at www.rcfp.org/taping.)
Consumer protection laws: "You're subject to the same laws regarding false advertising or consumer deception that the media is subject to," Hermes explains. So if your podcasts discuss products or services, consider whether the claims have a basis in fact. Hermes points out that there is a certain amount of leeway given to podcasters who are expressing opinions—much as an opinion columnist for a major newspaper is allowed to go out on a limb with his or her viewpoints. However, says Hermes, "if a listener hears your opinion, and infers that you have a factual basis for that opinion, and then that factual basis turns out to be false, you could be held liable for implying that false fact." The lesson for podcasters: Explain the factual details that allowed you to form an opinion. How do you keep an eye on the possible legal pitfalls of podcasting, when you're no doubt simply trying to carve out time to produce them at all? At the very least, says Hermes, create guidelines for your podcasters, alerting them to their responsibilities to keep the dialogue free of unnecessarily derogatory material or privacy violations. Consider bringing in the legal eagles for a pre-publishing review when you know in advance that the podcast could ruffle feathers.
Jeffrey Hermes, Brown Rudnick, 617.856.8200