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Jeffrey P. Hermes, a partner in the Boston office of Brown Rudnick Berlack Israels LLP, specializes in First Amendment defamation law, representing a number of different media outlets in both traditional and electronic formats. In the third part of our four-part interview, Digital Media Net's Charlie White talked with Hermes about the legalities of recording telephone conversations for use in podcasts.
DMN: Tell us about the rights of podcasters to record conversations.
Hermes: This is a good topic to mention in terms of rights and liabilities of podcasters. As I'm sure you know, Internet telephony has made communications with interviewees in podcasts possible, with interviewees in various locations around the world. One of the issues is your responsibility for the interviewee on the other end of the phone. There have been some interesting court cases which have come out recently involving people who call in to a remote jurisdiction. The case I'm thinking of is a call into California from a reporter in a different location, where in the reporter's state, it wasn't necessary to inform the recipient that the phone call was being recorded. But it is required under the law of California. In a California case, which was initiated by the person called, the California courts held that it was a violation of California law for the person calling into that state not to adhere to California's rules about informing recipients of calls, about whether or not they're being recorded.
DMN: It seems like it's just good manners to ask if it's okay to record, whether it's the law or not, doesn't it?
Hermes: It is certainly good manners. However, I've heard podcasts, and I suspect you have as well, where somebody has done the crank call/candid camera kind of call to somebody to try to get a response. They've called public officials, they've called a celebrity's publicist -- those kinds of things -- and not necessarily informed them that they're being recorded. What I'm saying is that kind of tactic can be dangerous if the state that you're calling into has restrictions on recording conversations where the recipient of the call isn't aware of the recording.
DMN: A lot of this is common sense. If you just use common courtesy, you're not going to put yourself in any danger of libel or being sued, are you?
Hermes: By and large, that's true. However, sometimes you're going to want to publish stories, publish information which somebody is not going to be pleased with you that you've published.
DMN: That's where it gets sticky.
Hermes: Exactly. Language can be fully protected by the First Amendment, because it's important information that the public should know -- and still do tremendous harm to somebody, whether that's because you're stating an opinion, and while the opinion is protected, it still would do damage to somebody's reputation, or because it's factually accurate information which somebody just doesn't want to get out. You can be as polite as you want and you're never going to reach an accommodation with that person where they're going to be pleased that you're releasing that information. Of course, there is a judgment that should be made, and from a common sense, humane perspective, as to whether or not you really need to release information which is going to damage somebody, even if you're fully protected by the First Amendment. But that's a personal judgment and an editorial judgment, not a legal judgment. So yes, by and large, if you're just publishing what you might think of as safe, friendly commentary information, things like that, chances are you'll avoid being sued. But you wouldn't want to adopt as a rule -- that you're never going to step on anybody's toes -- because it's exactly the stepping on people's toes that the First Amendment protects.
DMN: And sometimes if you step on someone's toes, if you reveal some fact about some person, that makes the program more interesting. That's one of the things that you try to do is get information that hasn't come to light before.
Hermes: That's right. That's what makes for good news broadcasts, and it makes for a good and informative podcast in almost any situation -- conveying information that your audience doesn't already know.
DMN: What are some other specific things that podcasters need to know that may set them apart from other media?
Hermes: Take a look at the issue of publishing statements which originated with third parties. I don't know if you've heard of the Communications Decency Act. It's a portion of the Telecommunications Act of 1996. The purpose of the Communications Decency Act is to protect Internet publishers of a particular type from liability for republishing content that originated with third parties. Now how does this work? The Communications Decency Act [CDA] prevents a category of Internet publishers called interactive computer services from being held liable for content created or developed by a third party. Interactive computer services are most typically things like an interactive website. Also, ISPs generally fall within the category of interactive computer services, but it's a broad category which is likely broad enough to encompass podcasters. Under the CDA, podcasters would be protected, for example, if they run a comment forum associated with their podcasts, where third parties come on and post their thoughts or comments on what's been dealt with in the podcast. Those comments are available on the podcaster's website for other people to see.
DMN: Let me make sure I understand this, Jeff. You're saying that if I have, say, a message board, I don't have to go through that whole thing and edit things out that I think might be libelous and problematic? That's not really my responsibility, I just have a blind eye to that content, because it's added by third parties?
Hermes: Yes. You could also exercise editorial functions with regard to the content without becoming liable. So if somebody's going on there and really flaming somebody else on the forum and you want to put a stop to it, take the actions which a moderator of a forum typically would take, you'll be okay, but you're immune from liability for that kind of behavior. Less clear is the issue of whether or not a podcaster could be liable for statements by an interviewee. You conduct an interview, and the third party makes a statement in response to your questions. Are you in some sense creating the content by guiding the third party's comments, getting him to speak about particular topics, urging him to take a particular tone, take a pro-versus-con approach? If so, if you can be held to be a creator of the content as opposed to a conduit for the third party content, then you're less likely to be protected. That's because the protection is only for statements created by a third party, not statements created by the podcaster.
DMN: So you could be held responsible for steering your interviewee in a certain direction, then, in certain cases?
Hermes: It's possible. I should say that as with all issues involving Internet law, there are open questions. So what I'm saying is it's possible you could be held responsible. It's because an argument that under the statute and the laws as they currently exist that this situation could be held to be outside of the protections of the Communications Decency Act. On the other hand, there is a different argument that runs, "Well, when you conduct an interview, what you are really doing is exercising editorial functions. The third party is still providing whatever responses he or she wants to provide to your questions. You're simply cutting them off, choosing what topics to cover, the sorts of things which an editor might do with content." Under the laws, you are protected for exercising editorial functions. So it's going to be a question for the courts to resolve whether or not conducting an interview is creating content or editing content. Right now, it's an open question.
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