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Programming – What Can Your On-Air People Programming – What Can Your On-Air People Do to Get You In Trouble Do to Get You In Trouble

Legal Issues For BroadcastersLegal Issues For Broadcasters

Kansas Association of BroadcastersKansas Association of Broadcasters

August 26, 2009

Amber L. HusbandsDavid D. Oxenford

amberhusbands@dwt.comdavidoxenford@dwt.com

www.broadcastlawblog.com

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Topics for discussion FCC Issues

Indecency Contests Sponsorship ID/Payola

Litigation Risks What is defamation/libel? What does a libel plaintiff have to prove? How to avoid libel suits Invasion of privacy claims Taping and hidden cameras Confidential sources and reporter’s privilege Newsgathering torts

Copyright Issues How social media plays into these issues

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Indecency

Multiple FCC Enforcement Actions - still waiting….. No radio indecency fines in years FCC Made Complaints Easier Increased fines - $325,000 per Incident Supreme Court upholds FCC fines for fleeting

expletives, but more appeals possible Be careful of anything that could offend broadcast

industry standards, as FCC may not have abandoned enforcement

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What is Libel?

False and defamatory statement About an identifiable person Published to a third party Causing injury to reputation Some degree of fault on part of

broadcaster

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Contests

Write rules that anticipate issues that could arise – e.g. ties, prize not available, multiple winners, etc

Follow rules carefully Give prizes when due Follow rules on eligibility Don’t make up new conditions Don’t let DJ make up contest

Broadcast all material rules on the air Watch for danger

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Payola and Sponsorship ID

Announce when you are paid to play something Payment need not be cash, just something of value Consideration can go to station or employee – still need to

announce it Watch for announcers plugging private businesses in which

they have an interest

Check with program providers to see if they are announcing when they are paid to play anything

Not just music, but any programming

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Defamatory Statement

What is a defamatory statement? A statement that is damaging to

reputation Examples:

Criminality/illegality Bankruptcy Fired from job Unethical behavior Loathsome disease

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More examples of defamatory meaning

Imputing unchastity – “hooking up” Adultery Poverty Incest Mental illness Sexual orientation Illegitimacy Examples from Kansas law:

Falsely charging a person with committing a felony Falsely charging a person with racism and

discrimination

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Defamation by implication

Was the inference intended or

endorsed? Disclaimers – the absence of disclaimer

may be evidence that implication was

intended

Omission of information

Crowd/background shots

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Opinion

Has to be a defamatory “statement of

fact” – so opinion is not actionable

What signals opinion? Language (hyperbole, satire)

Context (reviews, editorials)

Content (is it inherently subjective?)

Opinions which imply undisclosed facts

can be actionable

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Falsity

Information must be false to be

actionable

Public figures must prove falsity –

broadcaster is not required to prove truth

Private individuals also must prove

falsity if statement involved a matter of

public concern

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About an identifiable person Plaintiff must prove the statement is “of and

concerning” them - i.e., that the statement is about an identifiable person

Groups? Governmental entities, large groups cannot bring

claims Corporations, small groups are allowed to sue

If you disguise identity, must be completely disguised – not even a close relative should be able to identify the person If subject requests disguise, promise procedure – not

results

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Publication Republication: can be liable for libelous

statement made by someone else Interviews with subjects Fair report

Fair and accurate report of a judicial proceeding Must attribute the source

Neutral report Statements about one public figure about another

Generally not liable for wire service reports

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Harm to Reputation

“Per se” defamatory – criminal offense,

loathsome disease, unchastity, harm to

business

Otherwise, plaintiff must prove harm to

reputation

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Fault

All plaintiffs must prove broadcaster was at fault

Public figures have to prove highest standard of

fault Knowledge of falsity or serious doubts as to its truth

Who is a public figure?

Private figures have to show negligence – a

departure from responsible journalism standards

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Defenses to Libel Claims

Truth Fair report/neutral report Opinion Statute of limitations

One year SOL in Kansas

Retractions Not an absolute defense May reduce damages Consult attorney before agreeing to

retraction

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Who Brings Libel Claims? These groups file a disproportionate

number of lawsuits: Business men/women Corporations Judges Law enforcement Teachers Doctors Criminal Suspects Entertainers Children

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How to Avoid Libel Suits

Check sources Motive?

Provide opportunity to comment Promos/Teasers Don’t use file footage underneath defamatory

voiceover Just because someone else says it – doesn’t

mean you’re not liable What to do if you’re threatened with a lawsuit

Don’t admit fault Talk to editor or lawyer

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Invasion of Privacy Claims

False Light

Similar to libel claims

Embarrassing or hurtful

Publication of private facts

Embarrassing information (drug use,

sexual activity, medical information)

Recovery permitted even if facts are true

In order to use, has to be matter of

legitimate public concern

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Taping and Hidden Cameras

Kansas requires only one party consent for taping telephone conversation But calling into two-party consent state may

expose you to liability FCC rule if intended for broadcast

Kansas law prohibits use of cameras in private places and trespassing on private property to conduct surveillance

If in a public place, OK to tape

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Confidential Sources

Factors to consider in weighing

reliability of sources In a position to know

Personal agenda or motive

Other corroboration

Past reliability

Inherent credibility of claim

On or off the record

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Reporter’s Privilege

Kansas has no statute providing protection

from compelled disclosure of confidential

sources

You are more likely to be compelled to reveal

your sources in a criminal prosecution where

either the prosecution or the defense seeks

the information.

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Newsgathering Torts

First Amendment newsgathering right –

but not to be places where the public is

not permitted

Crimes or torts committed in the course

of newsgathering are generally not

protected by the First Amendment

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Newsgathering Torts

Intrusion Entering uninvited an area not open to the

public (i.e., a home, hotel room, non-public area) Surveillance by means of visual or audio

enhancement equipment (i.e., sound boom), even if from the public street.

Breaking into voicemail, e-mail Trespass

Entering or remaining on premises without consent or after consent is withdrawn.

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Copyright Issues

Make sure that you have rights to material that you use

No such thing as 10 second rule for Fair Use ASCAP, BMI and SESAC licenses don’t give you

rights to use commercial music in advertising Clearance issues on song parodies Watch for rip and read news or other on-air bits Internet makes issues much easier to find

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Social Media Issues

Issues of who is posting information and when they are doing it Personal time and computer or as part of their job

Libel concerns News shield law waivers Securities concerns Kids issues Adopt station policies to avoid issues, but

make them realistic

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Programming – What Can Your On-Air People Do to Programming – What Can Your On-Air People Do to Get You In Trouble Get You In Trouble

Legal Issues For BroadcastersLegal Issues For Broadcasters

Kansas Association of BroadcastersKansas Association of Broadcasters

September 19, 2007Amber L. HusbandsDavid D. OxenfordDavis Wright Tremaine LLP

amberhusbands@dwt.com

davidoxenford@dwt.com www.broadcastlawblog.com