podcastconuk: Paul Nicholls

Legal issues facing podcasters.

podcastpaul.com & podlawyer.com

Freedom of speech

There’s a lot to the legal side of podcasting than can I use the Blind Date theme tune. Legislation hasn’t caught up with what’s happening.

Is speech really free? You can say what you like until you tread on someone’s toes. We have a lot more than, say, China. We’re not allowed to say anything we want. It depends on where you say it and who you say it to.

Here in the UK, we are pretty liberal – you can’t take property or life belonging to another, they are policed by the state and we know we can’t do them. but civil actions are taken by the individual.

Defamation – two types – slander, the spoken word & libel, the ‘permanent’ form – in such a way as to ‘arouse feelings of pity’ Mere taunts (name-calling in the heat of the moment) are not enough.

What about podcasting? The law doesn’t move quickly with new technologies. Theatres Act 1968 – actionable if a theatrical production ridicules someone. Broadcasting Act 1990 applies to Radio and TV and treats defamation as a libel. Podcasting doesn’t fit yet.

There is no definitive answer, but if you defame somebody it would be actionable, but might take a lot more argument than in other media.

He’s had to deal with a defamation case already. Someone had talked to someone in a pub on a podcast and had interviewed someone else who referred to him as “that bloke who takes his clothes off down the arts centre”. Ended up not being defamation.

It’s not going to be a police matter, but individuals or corporations might sue.

Evidence needed – implying a criminal act punishable by imprisonment, implying sexual/contagious disease, imputation of sexual unchastity (for women), disparaging in office or profession (lowering their standing in the eyes of right-thinking people).

Innuendo – not just smutty eg Tolly vs JS Fry & Sons 1931. They used him in a chocolate ad which Tolly said prostituted his amateur status.

You can’t defame a class of people, I have to be able to draw an inference about an individual.

Defences – why do they go into such huge detail when reporting about people committing offences? It’s to avoid defaming other people who could be confused. If in trouble, take advice. Offers to make amends and limit damage, what you said might be justifiable or fair comment & in the public interest.

Don’t forget incitement or conspiracy (eg to corrupt public morals) So basically think before you open your gob and if you get a writ, take advice.

Q: jurisdiction? England & Wales applies to us. But it depends.

Q: Can you get legal aid for defamation. You are seen as guilty? Yes that’s right. That’s why we have no win, no fee. The burden of proof is on the other party.


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