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How to Keep Your Podcast Legal

Jeffrey P. Hermes and Samantha L. Gerlovin
How to Keep Your Podcast Legal Jeffrey P. Hermes and Samantha L. Gerlovin

Podcasting is challenging existing paradigms for how corporations and individuals reach out to their audiences. However, like any other mass media publisher, podcasters can be held responsible under United States law if they cross the line from the protected exercise of the freedom of speech to defaming the subject of a podcast. However, while the basic principles of defamation law have long been settled, courts are still deciding how those basic principles will apply to new media such as podcasting. 

What is defamation?
Defamation is the use of language which is capable of injuring the reputation of a person or corporation through the communication of false statements of fact to a third party. Defamation is relevant to podcasters, because of the potentially significant economic impact of litigation initiated by injured individuals or corporations. In addition to the cost of defending a lawsuit, damages in defamation suits can be substantial in amount. However, the First Amendment imposes specific limitations on such claims in the United States. These limitations are discussed below.

When is a statement "false," and how does truth affect a defamation claim?
Statements that are "substantially true" cannot support a claim for defamation. A statement is "substantially true" even if it contains minor inaccuracies, so long as any such inaccuracies do not affect the "gist" or "sting" of the statement. In other words, if a statement in a podcast would have substantially the same effect upon a listener as the literal truth, the statement will not be considered false. 

When the defendant in a defamation case is a media defendant, and the allegedly defamatory statements address matters of public concern, the plaintiff will have the burden to prove falsity. It has not yet been established whether podcasters will be considered "media defendants," but at least three courts that have considered other forms of internet publications have found them to constitute "media." Whether a podcast addresses matters of public concern will depend on the specific content of the podcast: a podcast which addresses purely personal issues is less likely to qualify, whereas a podcast that comments on matters of general public interest or importance is more likely to be protected.

What is opinion?
In addition to the protection for true statements discussed above, certain statements receive First Amendment protection because they cannot be proven to be true or false. The most important example of speech receiving this protection is "opinion," which, in defamation law, is a concept including two categories of statements. 

The first category of "opinions" includes vague or figurative statements that do not convey specific factual meanings. On this basis, courts have rejected defamation claims where defendants have: called a plaintiff a "meat-head" and "barbarian";  identified a store as "trashy";  described a plaintiff as a "bitch"; or described a theater production as "a rip-off, a fraud, a scandal, a snake-oil job."

The second category includes conclusions based upon facts that have been presented to a listener. For example, a podcast by a service-oriented company might discuss the experience of a rival corporation, and, based upon the facts discussed, state the conclusion that the rival is not capable of providing the services that the podcaster can. While the declaration that the rival corporation is not capable of providing certain services is certainly capable of damaging the rival's reputation, by providing the relevant facts, the podcast has enabled listeners to make up their own minds, and made clear that the podcaster's conclusion is only an opinion. Under such circumstances, this conclusion will not be actionable, regardless of how unjustified a listener might feel the conclusion to be. If, however, the podcast merely states that the rival company is incapable of providing certain services without providing the factual basis for that conclusion, listeners might infer a factual basis (possibly one not contemplated by the podcaster). If such an inferred basis turns out to be false, the podcaster might be held liable for intentionally or negligently implying false facts.

Standards of fault: What is the podcaster's duty to research the facts?
Under the First Amendment, podcasters cannot be held liable for publishing even false and damaging statements, unless they act with some degree of fault. In most jurisdictions, there are two standards of fault that apply to defamation actions: "negligence" and "actual malice."

A "negligence" standard traditionally applies in cases involving plaintiffs who are "private figures," i.e., individuals or organizations that have not projected themselves into the public eye. Under a negligence standard, the plaintiff must prove that the podcaster failed to act with the level of care that a reasonable person would have exercised in researching whether the statements in the podcast were true. Negligence can depend upon a variety of factors including the amount of time spent in research, whether there were attempts to obtain comments from both sides of a disputed issue, and the trustworthiness of sources of information.

In contrast, the "actual malice" standard applies to statements involving public figures (for example, celebrities and other high-profile people and corporations) and public officials (such as elected and appointed politicians and high-level government employees). "Actual malice" is also sometimes required in product disparagement actions. "Actual malice" is a legal term of art that refers to actual knowledge by the podcaster that a published statement is false, or a high degree of awareness on the part of the podcaster that a statement is probably false. Unlike the negligence standard, which compares a podcaster's conduct to what a reasonable person would have done, the actual malice standard focuses on what the podcaster actually knew about the statements published. Although the actual malice standard is difficult to meet, courts will consider circumstantial evidence of the podcaster's state of mind.

Although podcasting is a comparatively new and energetic medium of communication, it is still subject to traditional principles of defamation law in the United States. Podcasters should be aware of defamation law when exercising their editorial judgment over what content to include in a broadcast. 

Jeffrey P. Hermes is a partner and Samantha L. Gerlovin is an associate in the Boston office of Brown Rudnick Berlack Israels LLP.  Mr. Hermes' practice at Brown Rudnick ranges from rapid-response intervention in high-profile litigation on behalf of various publishing and media clients to complex corporate and intellectual property litigation. Mr. Hermes has extensive experience in representing media clients in First Amendment and access-related matters in state and federal court, including successfully unsealing impounded government records, representing reporters being pressured to disclose their confidential sources and defending against defamation suits. 
Ms. Gerlovin has a diverse litigation practice that places a particular emphasis on media issues, trademark litigation, torts, contract disputes, and complex commercial matters. Her experience in the media field is broad and includes work on defamation issues, matters concerning the Reporter's Privilege, and media access and privacy issues.
Both Mr. Hermes and Ms. Gerlovin have been involved in multiple Internet media cases and have written prior articles on the subject of Internet publication and the law.  Mr. Hermes and Ms. Gerlovin can be reached by telephone at (617) 856-8200, by facsimile at (617) 856-8201.


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