Mainstream media platforms, including newspapers and TV networks, often receive legal threats that their articles or TV programs are defamatory or unlawful in some way. By publishing content which is consumed by an audience, podcasts carry very similar legal risks.

Podcasters – and organisations that host them – need to be alert to the risks and avoid any issues.

1. Avoiding defamation

As podcasts have grown in prominence, so has the risk that a person who is the subject of a negative discussion may take umbrage and sue for defamation.

Evaluating the risk of defamation is often challenging and usually depends on a number of factors including:

• the nature of the content being discussed (ie. is it controversial or contentious?);
• whether an individual is the subject of that content, and if so, is that individual likely to take issue with what his being said about them;
• whether the allegations or assertions being made about that individual are supported by provable facts and evidence.

For example, last year, Indigenous footballer, Nicky Winmar and football photographer, Wayne Ludbey, sued the hosts of the podcast 'You Cannot Be Serious' for suggesting that Winmar's iconic act of showing off his skin in defiance of racist fans at a football game was about "guts" rather than Indigenous pride and defiance. The defamation case settled when the podcast hosts issued a public apology and paid a six-figure settlement sum.

It is worth noting that you can be liable for defamation even when:

• you are simply repeating or republishing an allegation that has already been published elsewhere. For example, if you run a news podcast, simply repeating a news item that has been published by another media outlet could land you in hot water;
• the publication doesn't conclude that a person is in fact guilty of the allegation, if the publication leaves open the possibility that the person may be guilty; and
• you or your host/co-host is not the person who makes the defamatory statement. For example, if you have a guest that appears on your podcast, you can be held liable for any defamatory comments made by them on your podcast.

Defamation claims also arise over less serious accusations but where that individual finds the description of them or the characterisation of their actions personally offensive or false and inaccurate.

This is why the old adage in defamation law is 'truth or nothing', meaning the best way to minimise the risk of being sued for defamation is to stick to what you know can be proven as true.

There are also risks associated with posting on social media as you can be held liable for any defamatory comments in response to your posts. Where your social media posts are particularly controversial or may incite comments that express negative views about an individual, the comments should be closely monitored and defamatory content taken down.

The other way to minimise your risk is to have your podcast 'legalled' by defamation lawyers who can advise on any potential exposure. If you receive a letter of complaint, you should seek advice about how to respond.

2. Checking suppression orders

This issue will be particularly relevant for investigative, true crime, legal and current affairs podcasts.

A suppression order is an order made by a court to prohibit the publication of information relating to a court proceeding. They can often be broad in scope and prevent the publication of identifying details of people involved in a court proceeding.

The difficulty podcasters and journalists face is that suppression orders are not always easily accessible and do not always have an end date. This can mean that there are historic suppression orders that a podcaster may be inadvertently breaching by discussing the details of a court case.

Breaching a suppression order can amount to contempt of court and in some circumstances, a criminal offence. A prominent example of this is the recent trial of the media organisations who were charged with contempt of court for breaching the suppression order over the conviction of George Pell in the County Court. Although journalists and media outlets reported on the outcome of the proceeding without naming George Pell, it was found that the media companies (with charges dropped against individual journalists) had 'usurped' the function of the court by publishing information that was prohibited by the suppression order.

If you are discussing a legal proceeding on your podcast, it may be necessary to check that there are no suppression orders that restrict what can be discussed.

3. Assessing for misleading and deceptive conduct

If you are incorporating advertisements into your podcast, particularly where you read out ads or post ads on your social media pages, you must take care to not mislead or deceive your audience.

Podcasters should ensure any statement representing products or services should be true, accurate and able to be substantiated. Australian Consumer Law (ACL), which is administered by the Australian Competition and Consumer Commission (ACCC), seeks to protect consumers from misleading or deceptive conduct.

To comply with the ACL, podcasters should be wary of blindly repeating a script given to you by an advertiser where there may be a risk that you will mislead your listeners. This includes where you are giving a 'testimonial' review of product that is not true – i.e. perhaps you haven’t even tried the product yet.

In assessing whether an advertisement may be misleading, consider the overall impression conveyed to the average or reasonable consumer. For example, could the advertisement lead a person to believe something that is false, or lead a person into error? Are the qualifying statements or 'terms and conditions' clear and prominent so that consumers know what the real offer is?

Where you are posting advertisements on social media, it is important to clearly disclose that it is a paid endorsement. This can be as simple as including hashtags such as, #ad or #sponsored.

Sometimes the best advice is to trust your gut: where you feel uneasy about promoting a product or reading out an advertisement because it may mislead your listeners, raising your concerns can reduce your risk of facing bigger legal problems down the track.

4. Providing guest release forms

Regardless of the content of your podcast, if you are having a guest on your podcast it is a good idea to have them sign a 'release and consent' form. This provides more certainty over the legal relationship, rights and responsibilities involved.

A suitable form sets out that the guest consents to participate and for their interview to be reproduced, distributed and promoted as part of the published podcast. It can also set out that the guest waives any so-called moral rights they may have in the podcast, as well as granting you the right to record, use and disclose the name, likeness, statements, voice, biography or other personal information in connection with the podcast.

Please feel free to contact us if you would like a 'release and consent' form for your podcast.

5. Being aware of intellectual property

Intellectual property (IP) is a term used to encompass a range of legal rights that protect the creations of the mind, such as literary, musical and artistic works. To enable people to earn recognition or financial benefit from their creative efforts, IP is protected in the law by, for example, copyright, trademarks, and patents.

There is a broad scope for podcasts to infringe on IP rights, particularly with regards to copyright. For example, using copyright-protected music in the podcast without obtaining the right to do so legally can expose the podcast to the risk of legal action.

In Australia, the Copyright Act 1968 (Cth) allows people to use copyright material without the copyright owner’s permission in certain situations, including 'fair dealing' for specific purposes. These purposes include for research or study; criticism or review; parody or satire; and reporting the news. Where the exceptions do not apply, a podcaster should take steps to ensure their use of any copyrighted material is properly approved and allowed.

6. Offering disclaimers for advice

If you have listened to any finance or money-making focused podcasts, you may have heard a disclaimer at the beginning or end of a podcast episode. This is due to the regulations around giving financial advice and to ensure that the podcaster is not at risk of a listener claiming compensation for their financial loss after they may have relied on the podcaster's advice.

Providing a disclaimer is particularly necessary where the podcaster is giving financial or legal advice, but may be worthwhile where there is any form of substantial advice being given.

For instance, this article does not create a lawyer-client relationship and is not to be relied upon as individual legal advice.

Protecting your podcast

The media law team at MinterEllison is well placed to assess your defamation risks or respond to a claim; identify if there are any suppression orders you should be aware of; provide you with a guest release and consent form; assist you with navigating IP issues and draft a disclaimer for your advice podcast.

Please feel free to reach out with any questions, and good luck with your podcast!