1 Programming – What Can Your On-Air People Do to Get You In Trouble Legal Issues For...
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Programming What Can Your On-Air People Do to Get You In Trouble Legal Issues For BroadcastersKansas Association of BroadcastersAugust 26, 2009
Amber L. HusbandsDavid D. Oxenford
Topics for discussionFCC IssuesIndecencyContestsSponsorship ID/PayolaLitigation RisksWhat is defamation/libel?What does a libel plaintiff have to prove?How to avoid libel suitsInvasion of privacy claimsTaping and hidden camerasConfidential sources and reporters privilegeNewsgathering tortsCopyright IssuesHow social media plays into these issues
IndecencyMultiple FCC Enforcement Actions - still waiting..No radio indecency fines in yearsFCC Made Complaints EasierIncreased fines - $325,000 per IncidentSupreme Court upholds FCC fines for fleeting expletives, but more appeals possibleBe careful of anything that could offend broadcast industry standards, as FCC may not have abandoned enforcement
What is Libel?False and defamatory statementAbout an identifiable personPublished to a third partyCausing injury to reputationSome degree of fault on part of broadcaster
ContestsWrite rules that anticipate issues that could arise e.g. ties, prize not available, multiple winners, etcFollow rules carefullyGive prizes when dueFollow rules on eligibilityDont make up new conditionsDont let DJ make up contestBroadcast all material rules on the airWatch for danger
Payola and Sponsorship IDAnnounce when you are paid to play somethingPayment need not be cash, just something of valueConsideration can go to station or employee still need to announce itWatch for announcers plugging private businesses in which they have an interestCheck with program providers to see if they are announcing when they are paid to play anythingNot just music, but any programming
Defamatory StatementWhat is a defamatory statement?A statement that is damaging to reputationExamples:Criminality/illegalityBankruptcyFired from jobUnethical behaviorLoathsome disease
More examples of defamatory meaningImputing unchastity hooking upAdulteryPovertyIncestMental illnessSexual orientationIllegitimacyExamples from Kansas law: Falsely charging a person with committing a felonyFalsely charging a person with racism and discrimination
Defamation by implicationWas the inference intended or endorsed?Disclaimers the absence of disclaimer may be evidence that implication was intendedOmission of informationCrowd/background shots
OpinionHas to be a defamatory statement of fact so opinion is not actionableWhat signals opinion?Language (hyperbole, satire)Context (reviews, editorials)Content (is it inherently subjective?)Opinions which imply undisclosed facts can be actionable
FalsityInformation must be false to be actionablePublic figures must prove falsity broadcaster is not required to prove truthPrivate individuals also must prove falsity if statement involved a matter of public concern
About an identifiable personPlaintiff must prove the statement is of and concerning them - i.e., that the statement is about an identifiable personGroups?Governmental entities, large groups cannot bring claimsCorporations, small groups are allowed to sueIf you disguise identity, must be completely disguised not even a close relative should be able to identify the personIf subject requests disguise, promise procedure not results
PublicationRepublication: can be liable for libelous statement made by someone elseInterviews with subjectsFair report Fair and accurate report of a judicial proceedingMust attribute the sourceNeutral reportStatements about one public figure about anotherGenerally not liable for wire service reports
Harm to ReputationPer se defamatory criminal offense, loathsome disease, unchastity, harm to business Otherwise, plaintiff must prove harm to reputation
Fault All plaintiffs must prove broadcaster was at faultPublic figures have to prove highest standard of fault Knowledge of falsity or serious doubts as to its truthWho is a public figure?Private figures have to show negligence a departure from responsible journalism standards
Defenses to Libel Claims TruthFair report/neutral reportOpinionStatute of limitationsOne year SOL in KansasRetractionsNot an absolute defenseMay reduce damagesConsult attorney before agreeing to retraction
Who Brings Libel Claims?These groups file a disproportionate number of lawsuits:Business men/womenCorporationsJudgesLaw enforcementTeachersDoctorsCriminal SuspectsEntertainersChildren
How to Avoid Libel Suits Check sourcesMotive?Provide opportunity to commentPromos/TeasersDont use file footage underneath defamatory voiceoverJust because someone else says it doesnt mean youre not liableWhat to do if youre threatened with a lawsuitDont admit faultTalk to editor or lawyer
Invasion of Privacy Claims False LightSimilar to libel claimsEmbarrassing or hurtfulPublication of private factsEmbarrassing information (drug use, sexual activity, medical information)Recovery permitted even if facts are trueIn order to use, has to be matter of legitimate public concern
Taping and Hidden Cameras Kansas requires only one party consent for taping telephone conversationBut calling into two-party consent state may expose you to liabilityFCC rule if intended for broadcastKansas law prohibits use of cameras in private places and trespassing on private property to conduct surveillanceIf in a public place, OK to tape
Confidential SourcesFactors to consider in weighing reliability of sourcesIn a position to knowPersonal agenda or motiveOther corroborationPast reliabilityInherent credibility of claimOn or off the record
Reporters PrivilegeKansas has no statute providing protection from compelled disclosure of confidential sourcesYou are more likely to be compelled to reveal your sources in a criminal prosecution where either the prosecution or the defense seeks the information.
Newsgathering TortsFirst Amendment newsgathering right but not to be places where the public is not permittedCrimes or torts committed in the course of newsgathering are generally not protected by the First Amendment
Newsgathering TortsIntrusionEntering 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-mailTrespassEntering or remaining on premises without consent or after consent is withdrawn.
Copyright IssuesMake sure that you have rights to material that you useNo such thing as 10 second rule for Fair UseASCAP, BMI and SESAC licenses dont give you rights to use commercial music in advertisingClearance issues on song parodiesWatch for rip and read news or other on-air bitsInternet makes issues much easier to find
Social Media IssuesIssues of who is posting information and when they are doing itPersonal time and computer or as part of their jobLibel concernsNews shield law waiversSecurities concernsKids issuesAdopt station policies to avoid issues, but make them realistic
Programming What Can Your On-Air People Do to Get You In Trouble Legal Issues For BroadcastersKansas Association of BroadcastersSeptember 19, 2007Amber L. HusbandsDavid D. OxenfordDavis Wright Tremaine LLP