Podcasting Legalities: What Every Podcaster Should Know, Part 4

Interview: Page (1) of 2 - 10/26/06

Podcasting Legalities: What Every Podcaster Should Know, Part 4 Getting sued: How to avoid it, whether to worry about it By Charlie White

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 this last part of our four-part interview, Digital Media Net's Charlie White talked with Hermes about the lawsuits that could befall podcasters, whether location of the podcaster is important when it comes to being sued, and whether all this talk of lawsuits against podcasters might have a chilling effect on their utilization of their First Amendment rights.

DMN: The Internet is so big, how can someone in one legal system sue someone in another? Where can you be sued?

Hermes: Yes, where can you be sued if you, despite your best efforts, wind up tripping over the law into libel or some other tort? The test for whether a remote court might have jurisdiction over a podcast has not yet been settled. It's an important question, though, because if you get sued in a remote location, your costs of defending a suit skyrocket.

DMN: Just the travel alone?.

Hermes: Exactly. Besides the fact that you had to travel to be a witness, you're probably going to need to go back and forth several times for various phases of the case, you're also going to have to deal with counsel in a different location because you can't be represented by a local lawyer in a remote location unless you luck out and find a lawyer in your own location who is admitted to practice in the remote location.

DMN: Another weird thing is that this is the World Wide Web. A lot of my readers are not even the United States. What if they criticized some citizen of the United States? Are they going to be sued then? Can't they just say, "Well, good for you and your court. I'm not coming there to get sued."

Hermes: A court in the United States can decide it has jurisdiction over you even if you're located outside of the United States. There are limitations on the ability to enforce judgment. There are treaties between countries that involve the taking of evidence and the ability to serve process outside of the geographical boundaries of the United States. It may be the case that any judgment which is rendered against you in the United States can't be collected on, but that judgment will stay there, so in the future if you ever do want to do business in the United States and you have assets here, it will be waiting for you, and you will be haunted by it.

DMN: So, what do we podcasters need to know about jurisdiction?

Hermes: As I said, the test hasn't been settled, but courts in other Internet cases have looked at four different factors: how interactive your Web presence is, whether you're operating a commercial site looking to do business in the remote location, whether you're targeting content at an individual or organization within the remote location, and the size of your audience in the remote location. Most podcasts, in and of themselves, aren't terribly interactive. Somebody subscribes, the podcast gets sent in, there's not a lot of back-and-forth there. To a certain extent, it's like publishing a magazine, you subscribe, and the magazine goes to your location.

DMN: Podcasters will get email and answer that on the air, but besides that, there's not a whole lot of interaction, at least not yet.

Hermes: That's right. Now, it is possible for a podcast to be part of a much larger Web presence. In that sense, it's fair to say that your entire Web presence, and not just the podcast itself, will be considered. So if you operate a very interactive site, with lots of information going back and forth between you and your customers, or to the extent there's commerce transacted, or if you're selling a product or anything like that, then that factor could weigh in favor of having you sued in the jurisdiction where your listeners are located. The fact that you're operating a commercial site in and of itself can be a factor because when you sell something to somebody located in a different state, you're effectively taking advantage of the right which everybody has to do business in any state in the United States. When you take advantage of the right to do business in, say, Massachusetts, Iowa, whatever, there's an argument that you subject yourself to the laws and jurisdiction of that particular state. Third: Whether you're targeting content at an individual or organization within the remote location. If the specific focus of your podcast is a person or organization located in a particular state, and it's likely to have the greatest effect within that location, and you as the podcaster are aware that that's the case, then it's fair to say that somebody defamed by your podcast should be able to bring you where they are.

DMN: Sure, that makes sense.

Hermes: The suit should be brought in that place where the person lives and works and felt the most damage. It's less clear if you're simply talking about a company's product. If the company is selling its products around the country, the company itself may be located in, say, Chicago, but does that mean that the injury will be felt in Chicago, or will it be felt everywhere that the product which the podcaster is talking about is sold? Sales will be affected in all sorts of different locations, so where the harm that comes is more generalized, the case for jurisdiction in the manufacturer's state decreases. In the last issue is the size of the audience, which is exactly what it sounds like. If there are lots of people listening to you, and you're aware of that, then the fact that you have a huge audience in a particular location would help somebody argue that you're intending to reach out to that audience. So all those factors go into it. Some factors are more relevant to podcasts than others. Interactivity of websites in the run-of-the-mill podcast is unlikely to be a major factor, but the targeting of content at a particular individual is likely to be a much more important factor.

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