Written by Claire Smithson and Principal, Jennifer Tutty.
Here at Studio Legal, we’re big fans of podcasts.
We love listening to the brilliant voices of Shameless, Sit With Us, Culture Vulture, The Peers Project, the Daily, Mamma Mia Out Loud, The Imperfects and Outspoken (to name just a few)… and we know we’re not the only ones.
Podcasting has transformed the way we communicate, educate, and entertain. However, as the podcasting industry continues to flourish, content creators need to be aware of the legal risks relating to the making of podcasts, especially as their reach grows.
Whether you’re starting out or an established podcaster, here’s our top 5 legal tips to keep front of mind when recording and releasing podcasts.
1. Beware What You Say About Others!
Podcasters have a knack for recording content in a way that makes their audience feel like they’re part of the conversation. However, podcasters must be careful with what they say to ensure they don’t defame any individual or breach any current suppression orders.
What is defamation?
Defamation occurs when defamatory matter referring to another person is published (for example via a podcast), and the defamatory publication caused or is likely to cause serious harm to that person’s reputation.
A matter will be defamatory when the meaning it conveys (directly, indirectly or by innuendo) has a tendency to lower that person (and their reputation) in the minds of ordinary members of the community.
Using adjectives, descriptions or even sarcasm about a person or topic may be enough to infer a defamatory meaning, even if the actual statement is not directly defamatory.
What are the defences to defamation?
There are a number of defences available through various states in Australia, which may apply in different circumstances. These include:
The defendant (person who the defamation claim is brought against) proves that the defamatory statements are ‘substantially true’.
2. Absolute Privilege
The defendant proves that absolute privilege applies.
One example of this is where the material has been published in the course of proceedings before a parliamentary body or court.
3. Public Documents
The defamatory material, which the defendant referred to, was published in a public document or in a fair summary of a public document.
A fair summary of a public document might be a report or paper published by the court or government to inform the public. To be ‘fair’, it cannot be biased or inaccurate.
4. Honest Opinion
This one is tricky as there is a fine line between expressing your opinion and expressing something as a fact. If the defendant proves that the defamatory material was an expression of their honest opinion (and not a statement of fact), which related to a matter of public interest and was based on ‘proper material’, this may be a defence.
‘Proper material’ is material that is either ‘substantially true’, covered by ‘public documents’ or a ‘fair report of proceedings’.
The defendant proves that the person allegedly defamed was unlikely to suffer any harm by the publication.
If this defence is raised, the court will consider the surrounding circumstances.
6. Consent of the person who is identified by the statements
Although this is not technically a defence, the best way to prevent a defamation claim being brought against you is to have the permission of that person to publish the material.
How to avoid defamation claims as a podcaster?
When talking about people on their show, podcasters should do so carefully and with forethought. And if they are going to say something that is potentially defamatory, podcasters should firstly research the statutory defences available to them to defend an defamation claim before publishing (see above), and be comfortable with the risk.
It is important to note that podcasters can express their opinions freely, as long as they clearly state that they are their opinion only, and not fact. Opinions are generally protected under free speech laws (see above list of defences). However, asserting false facts can lead to defamation claims.
If you’re in or wanting to enter the podcast game and keen to minimise your risk of being accused of making defamatory statements, you should always:
– Research your topics thoroughly and have evidence of any content expressed as fact.
– Be cautious of sensitive topics, and use disclaimers if need be (more on this below!).
– Use your platform to correct any false statements you may have inadvertently made.
What are suppression orders?
In addition to staying on the right side of defamation law, podcasters must also comply with any court suppression orders that apply to topics of conversation on their podcast.
In short, a suppression order is a legal order made by the court which prohibits the publication of information about a court proceeding. Suppression orders are made to:
– Prevent prejudice in a court case.
– Avoid prejudicing the interests of national security.
– Provide protection to individuals involved in the matter.
– Avoid causing undue stress or embarrassment to individuals involved in the matter.
Additionally, suppression orders are used to protect sensitive information and to ensure fair trials.
Podcasters must be careful not to breach any suppression orders. The penalty for breaching a suppression order can be substantial.
How to avoid breaching suppression orders?
If you’re in or wanting to enter the podcast game and wanting to comply with suppression orders in your podcast, carefully note the following:
Firstly, you must keep up to date with current suppression orders that apply to you as a podcaster.
Secondly, you should be vigilant in keeping yourself informed about any active suppression orders in any state or country that your podcast can be access from.
Finally, if there is any risk that the individual or matter you are discussing is subject to a suppression order – do not mention nor allude to it in any of your podcast or related content.
2. Don’t Forget to Monitor Your Socials
You are responsible for what you say on your socials and for what your community says
Podcasters don’t just have to watch what they say. They have to watch what others say too!
It is not unusual for a podcaster to have associated social media accounts. Facebook, Instagram, Tik Tok and X are common platforms where podcasters continue to share content and engage with their audience.
It may seem counter intuitive, but social media account holders are responsible for comments that are posted on their social media accounts – regardless of whether they are the author or publisher of the content or not.
In a ground breaking Australian case in 2021, the High Court of Australia considered the media’s extent of liability in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller  HCA 27.
The High Court found that:
– All people/organisations/companies have the responsibility to maintain their own websites and social media pages; and
– That people/organisations/companies may be held liable for any defamatory remarks or comments made on these websites and social media pages.
How to monitor your socials
If you’re in or wanting to enter the podcast game, we recommend monitoring your socials by:
– Hiring or nominating someone to be responsible for reviewing the comment sections of all your social media accounts.
– Disabling comments if you think a post is particularly evoking of negative comments.
– Setting clear community guidelines for acceptable behaviour on your socials. Don’t be afraid to remove members who do not follow your guidelines!
3. Be Careful Not to Mislead or Deceive
What is the Australian Consumer Law (ACL) and the Australian Competition & Consumer Commission (ACCC)?
The ACL is designed to protect consumers from unfair business practices. When it comes to podcasting, there are several areas of the ACL that podcasters need to be mindful of.
The ACCC is an agency which aims to promote fair market competition to the benefit of consumers, business, and the community.
Both the ACL and ACCC have seriously cracked down on social media influencers (including podcasters) in an effort to stop misleading testimonials and endorsements on social media platforms.
If you are making podcasts and advertising is key for you to commercialise your content, you must ensure you comply with the strict guidelines set out by both the ACL and ACCC.
What are false or misleading representations?
Under the Australian Consumer Law, podcasters cannot engage in false or misleading representations – this is particularly important when podcasters record or post ads.
A false or misleading representation is a claim which creates a false impression to a podcaster’s audience as to the price, value or quality of goods or services on offer.
An example of where podcasters get into trouble, is where they offer a testimonial that is untrue. Perhaps a podcaster tell her/her audience that his/her hair has never been better after using a new shampoo. When in truth, the podcaster has not used the shampoo.
How to avoid making false or misleading representations?
To avoid becoming a target of the ACCC, podcasters’ ads should:
– Be true, accurate and able to be substantiated; and
– Not mislead or deceive their audience.
Alternatively, podcasters’ ads should not:
– Give testimonial reviews that are untrue;
– Make medical claims; and
– Not mislead or deceive your audience.
If a podcaster is unsure whether or not their ad is misleading, think about the overall message that is being sold to the consumer and whether or not it is an accurate message.
What are disclaimers?
A disclaimer is a statement intended to limit a person or business’ legal responsibility. They can be used to:
– State that a third party is responsible for a claim (i.e. when advertising a product).
– Provide context for information provided.
– Inform audiences about the nature of certain content.
– Highlight any potential risks involved with information provided.
– Highlight limitations of the information provided.
How and when to use disclaimers?
Podcasters should use disclaimers for both advertisements and content.
An example of a content disclaimer may be when a podcaster discusses financial, medical or legal matters which they are not legally qualified to provide formal advice on. A podcaster should use a disclaimer to convey that the content is for informational purposes only and should not be considered professional advice (as the podcaster is not an accountant, medical practitioner or lawyer).
An example of an advertising disclaimer may be when a podcaster is talking about a new must have handbag. The podcaster should use a disclaimer to convey whether or not the podcaster is being paid for the brand shout out–or if it is truly a personal recommendation.
A further example of a disclaimer may be when a podcaster conveys to its audience that their guest’s views are not reflective of their own.
If you’re in or wanting to enter the podcast game, you need to know that the key to using a disclaimer, is ensuring that the disclaimer is VERY obvious to your audience.
What about other laws applying to social media advertising and therapeutic goods?
Podcasters need to be aware that there are 2 key codes that apply to podcasters, as follows:
– The TGA Code (more information on our Blog titled ‘What is the TGA Code and What Does It Mean for Brands and Social Media Influencers‘)
– The AANA Code (more information on our blog titled ‘#Ad: The New Rules of Social Media Advertising that Influencers Need to Know‘).
It’s not within the subject of this article to deep dive into these codes, but podcasters need to jump to these associated articles on our website to make sure they get across and comply with these codes when carrying out advertising and promotional services in relation to their podcasts.
4. Provide Your Guests with Release Forms
What is a release form?
One crucial aspect of podcasting, especially when featuring guests, is the use of release forms.
A release form is an agreement between a podcast and a guest which outlines the terms in which the two agree to work together.
Release forms are useful to outline consents and legal protections between the podcast and guests such as:
– How a podcast can use the guest’s images, voice and name throughout the podcast and in promotional materials and social media posts.
– Who owns the content once the podcast is recorded and edited. This may include distribution, editing and promotional rights.
– Defining the duration of the relationship.
How do release forms protect you?
If you’re in or wanting to enter the podcast game, issuing guest release forms will keep you in charge of your content and reduces risk that a guest will make a legal claim against your podcast.
Asking guests to sign a release form can also help ensure that you:
– Receive consent to discuss and publish certain topics.
– Set clear guidelines as to your expectations and future intentions for the content.
– Have control of the final edit of your podcast. This is useful where you have a guest on your podcast, who then doesn’t like how they have come across in the edit!
5. Don’t Infringe Others’ Intellectual Property (And Make Sure to Protect Your Own!)
Intellectual property (IP) plays a critical role in any successful enterprise. As a podcaster, recognising the value of your business’ tangible and intangible assets can assist you to maximising your business’ profitability, reputation, and longevity.
When a podcaster creates a podcast, the podcaster generates original content that may be subject to copyright protection. Here are some key points to keep in mind.
What is copyright?
Copyright refers to the bundle of rights attaching to original works and other subject matter.
Under the Copyright Act 1968 (Cth) (Copyright Act), “works” that can be protected by copyright include literary works, musical works, artistic works, and dramatic works. “Other subject matter” that can be protected include sound recordings, cinematograph films, TV broadcasts, sound broadcasts and published editions of works.
Podcasters should be aware that original content, such as scripts, music, and sound recordings, is automatically protected by copyright as soon as it is created. You must ensure that you have the necessary rights to use any third-party content in your podcast.
Equally, keep in mind that you too are likely creating protected works. Copyright protection is automatic if your relevant work meets certain criteria-be on the lookout for others using your work without your consent!
How to use protected works?
If you’re in or wanting to enter the podcast game, it is very important that you seek proper licenses or permissions for any music, sound effects, or other content you use if it is owned by others. You may find it easier to use royalty-free content to avoid potential legal issues.
We often hear individuals discuss the 10% rule. This is generally not correct, nor that easily defined.
However, Australia does recognise the concept of “fair dealing”, allowing limited use of copyrighted material for purposes like criticism, review, news reporting, or education. The interpretation of fair dealing can be complex, so consult with legal professionals to ensure compliance if you wish to use material that is subject to copyright.
For more information on copyright basics, check out our blog titled ‘9 Common Mistakes People Make About Copyright‘ here.
For more information on legal considerations for podcasters and content creators, check out our blogs:
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Written by Claire Smithson and Principal, Jennifer Tutty.
Published 16 November 2023.
The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.