Vol. 22, No. 5,514 - The American Reporter - September 7, 2016



by Jeffrey P. Hermes and Samantha L. Gerlovin
American Reporter Correspondents
Boston, Mass.
September 26, 2006
American Opinion
FOR PODCASTERS, A BRAVE NEW WORLD OF LEGAL ISSUES

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BOSTON -- Podcasting is a vibrant method of exercising First Amendment rights that allows people and corporations of all sizes to share their thoughts with a vast potential audience. 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 freedoms of speech and press to defaming those that are the subject of a podcast.

The general principles of defamation law apply to both traditional media and podcasters, but there are certain special issues that arise in the context of podcasting. One of the first is, When is a podcaster responsible for the statements of other people?

When discussing the responsibility for third party content on the Internet, the starting point is the Communications Decency Act (1.), the 1996 federal statute that governs when Website operators, ISPs, and certain other kinds of Internet publishers can be held responsible for content created by third parties. The CDA protects a category of Internet services referred to as "interactive computer services."

Under the CDA, a Website host or other Internet Service Provider who fits the definition of an "interactive computer service" is immune from liability for content created by third parties. Large commercial ISPs, such as America Online, fit the definition of "interactive computer services"(2). "Interactive computer services" have also been held to include certain types of Internet Websites, including dating service sites (3), sites with stock quotation information (4), and online discussion group sites(5).

Given the broad precedent for finding that different forms of Internet activity constitute "interactive computer services" under the CDA, it is arguable that podcasts should fall within the protection of the statute. The CDA clearly protects podcasters who maintain comment forums by immunizing them against liability for statements made by listeners in such forums.

The CDA also provides immunity to podcast aggregators and directories, such as Podcast Alley, from responsibility for the third-party podcasts to which they facilitate access. It is doubtful, however, that the CDA would protect a Website operator that makes accessible podcasts or other content created by employees of the operator, as opposed to content created by independent third parties.

A closer question is whether podcasters can be held responsible for statements made by interviewees during the course of a podcast. It is quite common in podcasting to invite guests to speak on various topics, given that Internet telephony tools such as Skype make possible the cost-effective interviewing of guests who might live anywhere in the world (6).

Even if a podcast is found to qualify as an "interactive computer service," it is not clear that statements in podcast interviews will be treated as content created by a third party. The podcaster, by asking particular questions, by encouraging the interviewee to elaborate on particular topics, or, in more confrontational interviews, by provoking the interviewee to outbursts, could be seen as engaging in the affirmative creation of content. This differs from the type of activity that has been protected by the CDA to date, which largely involves the passing along of content independently created by a third party to the end user.

Nevertheless, there is an argument that podcasters should receive protection for statements in interviews, because "interactive computer services" may still exercise "a publisher's traditional editorial functions - such as deciding whether to publish, withdraw, postpone or alter content" with respect to third-party material and remain within the CDA's scope of immunity (7).

If the interview process is viewed as a method of editing and selection of the subject matter that the interviewee addresses, rather than a method of creating or developing content, the CDA might arguably apply. Similarly, if a podcaster simply makes the podcast available to a third party as a soapbox from which to address a particular issue, as opposed to asking questions and guiding the third party through the form of a traditional interview, the podcaster will be in a better position to argue that the third party is the sole creator of the content at issue.

It remains to be seen how courts will resolve this issue. If the CDA is found not to apply to an interviewee's statements, then podcasters could be held liable for an interviewee's statements as if they had made such statements themselves. Thus, until this legal question is resolved, the cautious approach for podcasters is to consider whether an interviewee is making statements of fact, protected opinion, or both, and whether any factual information provided by the interviewee is reliable or should be separately researched before publishing the interview.

Are podcasters responsible for the content of outdated podcasts? That's another important issue for them.

It is a common practice for podcasters to keep past podcasts archived on their Website, so that listeners can download earlier releases. But what happens when statements which a podcaster reasonably believed to be true at the time of an earlier podcast are revealed by later events to be false? Is the podcaster responsible for keeping track of new information regarding stories covered in earlier podcasts, and either blocking access to earlier podcasts or editing those podcasts to reflect current events?

In more traditional media, courts will consider the state of mind of a publisher as of the date of the original publication of an article or broadcast in determining whether the publisher acted with negligence or actual malice (8). However, newspapers and television broadcasts are essentially incapable of being withdrawn from the public once released. Thus, it does not make sense to hold traditional publishers responsible for knowledge of events that occur after publication, when they cannot change statements that have already been published.

In contrast, podcasts, Websites, and some other forms of Internet speech can, in many respects, be edited or withdrawn from circulation at any time. Does this mean that Internet publishers are responsible for conducting an ongoing review of events that might relate to past statements, and for policing their prior publications while they continue to produce new material?

While unsettled, the stronger argument is that they are not. In related areas of defamation law, many courts have refused to expand liability for Internet publishers despite the fact that Internet content can be edited after dissemination. Courts have found that reducing the protection for Internet publishers for this reason would penalize the unique advantages of Internet communication and unduly chill the use of the Internet as an important and vibrant forum for speech (9). Requiring podcasters to constantly research statements in prior podcasts would impose precisely the type of undesirable impediment to publication that these courts have sought to avoid.

Nevertheless, it is unclear whether the same result would follow if a podcaster is shown to have actual knowledge that material previously published is false. A court might hold a podcaster responsible for failing to remove material known to be false, without imposing an affirmative duty to research the continuing validity of previously published statements.

Until this area of the law is clarified, the cautious approach for podcasters who have actual notice that previously published statements are false is to remove the relevant podcasts from circulation, or at least edit those podcasts to remove the false material.

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. However, because podcasting is a new medium, the law is not fully developed with respect to how these traditional principles will apply, and there are particular legal issues unique to Internet publishers such as podcasters, that podcasters are encouraged to consider when exercising their editorial judgment over what content to include in a broadcast.

Editor's Note: 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, and by email at jhermes@brownrudnick.com or sgerlovin@brownrudnick.com..

Footnotes:

  • 1. 47 U.S.C. § 230.
  • 2. See, e.g., Zeran v. America Online, Inc., 129 F.3d 327, 329 (4th Cir. 1997).
  • 3. Carafano, 339 F.3d at 1122-23.
  • 4. Ben Ezra, Weinstein, & Co. v. America Online, Inc., 206 F.3d 980, 983 (10th Cir. 2000).
  • 5. Novak v. Overture Servs., Inc., 309 F. Supp. 2d 446, 452-53 (E.D.N.Y. 2004).
  • 6. A host of issues arises out of the recording of communications for use in later podcasts, particularly where the other party on the line is not aware that the conversation is being recorded. Certain states provide criminal penalties for recording electronic communications without the knowledge (if not the assent) of both parties to the communication. The parameters of liability for this type of conduct are beyond the scope of this article, but podcasters are urged to investigate the state of the law in their respective jurisdictions, and the jurisdictions in which their interviewees are located, before engaging in this type of activity.
  • 7. Zeran, 129 F.3d at 330.
  • 8. See Restatement (Second) of Torts, § 580B, comment g (negligence depends upon efforts taken to verify information "before publishing"); Bose Corp., 466 U.S. at 498 (actual malice determined by reference to defendant's subjective state of mind at time of publication).
  • 9. See Firth v. State, 98 N.Y.2d 365, 371-72 (2002) (stating, in deciding to apply the "single publication rule" to Internet communication, that "many Web sites are in a constant state of change," and that failing to apply the single publication rule "would either discourage the placement of information on the Internet or slow the exchange of such information, reducing the Internet's unique advantages"). See also, e.g., Oja v. U.S. Army Corps of Engineers, 440 F.3d 1122, 1129-33 (9th Cir. 2006) (applying single publication rule to Website despite editable nature of Website, noting that single publication rule had been applied to books and other forms of printed materials where it was more feasible to remove an alleged libel from circulation); Traditional Cat Assoc., Inc. v. Gilbreath, 118 Cal.App.4th 392, 404 (Cal.App.4th Dist. 2004) ("the need to protect Web publishers from almost perpetual liability for statements they make available to the hundreds of millions of people who have access to the Internet is greater even than the need to protect the publishers of conventional hard copy newspapers, magazines, and books."); McCandliss v. Cox Enterprises, Inc., 265 Ga.App. 377, 379-80 (Ga.App. 2004); Churchill v. State of New Jersey, 2005 WL 1468008, *6 (N.J. Super. App. Div. Jun. 23, 2005); Abate v. Maine Antique Digest, 2004 WL 293903, *1-2 (Mass. Super. Jan. 26, 2004) ("This court sees no reason why those who disseminate information on the Internet should be afforded less protection from lawsuits than other purveyors of information to the public.").

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