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Jeffrey P. Hermes is a partner in the Boston law firm of Brown Rudnick Berlack Israels LLP. He specializes in First Amendment defamation law, representing a number of different media outlets in both traditional and electronic formats. He represents media defendants who become involved in defamation suits and also has extensive experience defending reporters who are under subpoena and are being forced to disclose confidential sources. In part one, Digital Media Net's Charlie White talked with Hermes about podcasters, the First Amendment, and the risk of defamation suits when expressing their opinions. 
Jeffrey P. Hermes
DMN: For the readers who are just starting to podcast, can they say anything they want about anybody? Do they have to watch what they say? How far can they go?
Hermes: Well, that's a complex question, but in the United States, there are limits on what you can say and still seek protection under the First Amendment for freedom of speech and freedom of the press. What's important to know is that when you become a podcaster, you essentially transform yourself, whether you're an individual or whether you're a PR person within a corporation who's trying to promote a product -- you transform yourself into a mass media publisher. Overlaid on that are certain quirks which are unique to Internet publication. Now, everybody is subject to the law of libel and product disparagement. Libel is when you communicate defamatory information in recorded formats, and that can be either written, or it can be oral communications that are recorded. That would include a podcast which communicates false and defamatory information about the subject.
DMN: So the truth is a good defense there? If you're saying something negative about a product or a person, if it's true, then you're not in trouble, right?
Hermes: That's right. Now, it can be a little quirky as to when you need to be able to prove that your statement is true, versus when the party who claims to be wronged is required to prove that the statements are false. By and large, when you're talking about a matter of public interest, the burden will be on the party who has claimed to be wronged. That person would be the plaintiff in a court case. It's also a requirement that the plaintiff prove that you acted with some degree of fault. That is to say, publishers are protected. All publishers are protected for what are essentially good-faith mistakes. If you're publishing statements about a private individual, what you need to do is not be negligent. You need to act with a degree of care which a reasonable person in your position would have exercised in determining whether statements published are true or false. There's even greater protection if you're publishing about a public figure or a public official.
DMN: How do you define a public figure?
Hermes: A public figure is somebody like a celebrity, or a CEO of a major company. A public official can be anybody from an elected politician to an appointed politician, or a judge, or anybody whose office subjects him to the sort of scrutiny that you'd expect from somebody who's performing acts on behalf of the entire public. This almost always pertains to government officials of one sort or another; they can be judicial, executive, legislative, whatever, and they can be state level or federal level.
DMN: If a podcaster is reviewing a certain product and the opinions expressed are all subjective, for example, if he's reviewing a speaker system, and says these speakers sound terrible. That's a pretty safe thing to say, because it's subjective, isn't it?
Hermes: What you're getting into there is protection for opinion. What's important to remember about opinion is that opinions are protected so long as you provide the factual information on which you are basing your opinion. So, for example, if you say, "in my opinion these speakers do not work well because their design creates an aural environment in which you can't hear the speakers adequately if you're sitting directly in front of them."
DMN: That might be a pretty valid statement, I would think.
Hermes: It would be a valid statement, it would indicate that I listened to the speakers, I tested them myself, made certain observations and I formed my opinion based on those statements. The reason why statements of opinion based upon disclosed facts are protected is that the listener can make up his or her own mind based on the facts presented. The fact that the underlying basis for the opinion is presented indicates that it's an opinion; it's not an assertion of fact.
DMN: Is there a provision in the law that says that if you have malice aforethought then you're in a much more dangerous area when you're expressing your opinions?
Hermes: Okay, it's an interesting question. The word "malice" has some very specific meanings in the law of libel. It's a term of art. The term which is almost always used is "actual malice." We were talking about public figures and public officials a few moments ago. If you're writing about a public figure or a public official, in order to be held liable for printing a false and defamatory statement of fact, it needs to be proved that you acted with actual malice. What that means is knowledge that your statements were false, or a subjective high degree of awareness that the statements were probably false. It doesn't, however, relate to the concept of ill will. So the term "malice" can often be confusing, because in its common sense, malice would tend to indicate that you're trying to go after somebody, you're angry with somebody, you're trying to do them harm. But as far as the First Amendment is concerned, your motive is irrelevant if you're talking about a public official. Now if you're talking about a private person, and you're under a negligence standard, then your state of mind can come in to indicate whether or not you were really thinking of taking the requisite degree of care you needed to take to not publish false statements about a private person. But if you're talking about a public official or a public figure, it doesn't matter why you're publishing it so long as you don't act with knowledge of falsity or a high degree of awareness of probable falsity.
DMN: We're getting a good idea of what the law is here and what the theory is, but can you tell our readers what the likelihood of their being prosecuted for breaking these laws would be?
Hermes: Well, I should raise the distinction; we're not talking about laws that they are breaking that they would be prosecuted in a criminal sense.
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