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(By Shawn Yesner) “Opinions are like noses, everyone has one!” But what happens when a podcaster crosses the line? At what point does the podcaster’s content become defamatory?
You should check the laws of your home state, but in general, the elements of defamation are: (1) a false statement concerning another; (2) communication of the statement to a third party; (3) negligence or some other fault on the part of the publisher; and, (4) some type of harm.
On your show, you call out a competitor’s show and describe why your show is better (your opinion, therefore not defamation).
On your show, you call out a competitor’s show and lie about your competitor being a convicted felon for molestation (a falsehood, therefore probably defamation).
If your competitor has monetized his show, and he can demonstrate loss of listeners, downloads, subscribers, or advertisers directly related to the second example above, then you are likely to get sued for defamation.
However, defamation does have defenses including: (1) truth (in the example above, if your competitor was actually convicted of the crime, which can be proven through public record); (2) First Amendment privileges; (3) public officials making statements during the scope of their duties; (4) public figures generally have a defense unless they can show they acted with actual malice (bad intent) against the person accusing them of defamation; and, (5) opinion.
In addition, privileged statements (like statements made during a judicial proceeding) are privileged and typically cannot constitute defamation. Plus, if the alleged defamatory words are directed towards a large group (“The [insert your favorite team here] stinks” = no defamation).
Finally, there are two different types of defamation: per se and per quod. Per se defamation is actionable on its face, just because it was published, typically without anything more. There are four types of defamation per se, a statement that a person, (1) engaged in criminal activity; (2) has a “loathsome,” contagious, or infectious disease; (3) is unchaste; or, (4) engaged in illicit behavior in the conduct of his business. Defamation per quod is either not apparent and requires extrinsic evidence to prove damages to the target or is apparent but not actionable for some reason.
Therefore:
-- “If you want to get on her show, you need to sleep with her.” – maybe defamation per se. – “If you get an interview with Fred, do it by phone or you’ll catch cooties.” – maybe defamation per se. – “My show has 10 times the downloads of my former partner’s show.” – probably not defamation if it can be proven, or if it causes no damage to the other show. – “My show is the best show out there for listeners between 25 and 35 years old.” – not defamation because it is opinion. – “Shawn wrote a terrible article on defamation, he probably runs his practice just as badly, and you shouldn’t ever hire him for legal work!” – maybe I do sue you for defamation if I can prove your statement caused me to lose clients.
Please check with a local attorney as each state may have a slightly different definition of defamation and the elements necessary to prove defamation, the damages available, and how those damages are quantified by the “injured” party. At the same time, I would suggest that you take a deep breath, count to 10, and review your notes before you go off on a rant on your next episode.
Shawn M. Yesner is the founder and owner of Yesner Law, P.L., and an attorney in Tampa, FL. Shawn hosts The Crushing Debt podcast, which supports the purpose of the lawfirm – to eliminate financial bullies from your life.