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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
[email protected]@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
[email protected] www.broadcastlawblog.com