Ethics in Podcasting

Welcome! Join me, Gordon Firemark, The Podcast Lawyer™ for another edition of Legit Podcast Pro, the podcast for anyone serious about their podcasting, or YouTubing, or any media creation endeavor.

In this episode we take a look at another important legal issue podcasters must consider. Ethics!

[00:00:00] In this age of digital media and easy access to production and publishing tools, what is the role of ethics in podcasting and journalism? Dive in with me on this episode of Legit Podcast Pro and let's find out.

[00:00:19] Welcome to another episode of Legit Podcast Pro. I am Gordon Fire Mark, the podcast lawyer. I help creatives and business people in the podcasting industry to cover their legal bases and protect themselves and the things that they create. And on this show, I offer legal tips and information and strategies, and I try to answer your questions so you can grow your show like a pro.

[00:00:40] And today we are delving into a topic that is both . Timely and timeless ethics. Whatever your role in the world of podcasting might be, whether it's creator, producer, editor, host, or even just a listener. Understanding the ethical dimensions of what we produce and consume is really critical now in this age of digital [00:01:00] media where anyone with a microphone can have their voice and message heard and put out to.

[00:01:05] Tens or thousands of or millions of people. The line between journalism and podcasting is often very blurred. What responsibilities do we owe our audiences to our subjects, to society? How do we navigate the tricky terrain of copyright about representation? Truth and consequences for not getting the truth right and things like that.

[00:01:26] So stay with me as I share some of the ethical dilemmas in podcasting and journalism. By the end of this episode, you just might rethink the way you approach creating, distributing, or even consuming media content. So settle in and let's get started. What is this thing called ethics? Well, ethics refers to the study of what is morally right and wrong, guiding individuals and societies in determining appropriate behavior and decision making.

[00:01:53] It encompasses a set of moral principles and values that govern the actions and decisions of an individual [00:02:00] or a group. These principles serve as a compass for behavior, and they help individuals discern right from wrong in various situations. And I should just say, It is sometimes situational. It is sometimes cultural.

[00:02:11] Different countries, different nations, different religions will approach these questions a little differently, so you do have to. Keep things in perspective for what that means for you. Now, media ethics pertains to the principles and standards of conduct that guide media makers. That includes journalists, content creators, broadcasters in their work and decision-making processes.

[00:02:38] It addresses issues such as . Accuracy, fairness, privacy, representation in the creating and disseminating of information. This field ensures that the media serves the public interest while respecting individual rights and societal norms. So what are some of the ethical issues that come up for content creators like us [00:03:00] podcasters and YouTubers?

[00:03:00] Well, here's a short list that I've come up with. First off, intellectual property and copyright infringement. Now, this actually starts long before you ever launch a podcast or create any content. You're gonna decide on a format and on a title for your show, and you have to decide, is it okay to copy from others or not?

[00:03:19] Formats aren't always protected under the law, but ethics transcends the boundaries of what's legal and what's not. Sometimes what's ethical is illegal, and sometimes what's legal is unethical. So think about that when you're setting up a format for your show. If you're copying something that's sort of unique with another show, ask the question, is this right?

[00:03:38] Is this something that they might claim as theirs? Is this something that could actually hurt me? My reputation if I go out with this and people recognize it as I knock off of someone else's format, and you know, not all formats are . In this category, obviously a talk show is a talk show and an interview is an interview and those kinds of things.

[00:03:56] But sometimes there's something unique or, or that sets apart a format, [00:04:00] or maybe it's just a segment of a show. Be careful and thoughtful about this and choose your title to be something that sets you apart. Rather than just that describes your show and make sure that the title you're going with isn't going to have your show being confused with some other show, even if they're not trademarked.

[00:04:18] And then there's the content itself. Using copyright music clips or other content without proper permission or attribution can lead to ethical and legal. Obligations and complications. You know, if you didn't create it, somebody else did. And that somebody likely owns copyright and the right to control how and whether it's used by others.

[00:04:39] And even so plagiarism, even when it doesn't rise to the level of a copyright infringement is wrong. It's just wrong. So get permission, give attribution, do what you can to make sure you're on the right side of. The moral and the ethical analysis as you make your content. But there's another side to this, after all, sometimes in order to point out [00:05:00] irony or hypocrisy or bad behavior or bad governance or who knows what, it could be necessary to copy and hold things up for audiences to see and hear.

[00:05:09] And that's why we have exceptions in the law. Things like the defenses of fair use or parody, those kinds of things. So think hard about these kinds of things. The next issue that often comes up is misinformation and the need for fact checking. As podcasters, we have a responsibility to ensure that the information we disseminate is accurate and fair.

[00:05:31] Spreading false or misleading information can really damage your credibility and it can cause harm to your listeners and maybe other people out there. I mean, What if the information I'm sharing with you right now was bogus and you rely on it somehow and you find yourself in some kind of trouble or hurting someone or whatever, well that wouldn't be cool.

[00:05:50] I'd feel pretty terrible about it, so it's incumbent on me to make sure I'm getting it right. When I speak authoritatively on a subject I. And to let you know if I'm expressing my [00:06:00] opinion or when my view is one of only several or, or if it's controversial and there are people who disagree, it might even be incumbent on me to bring those disagreements out into the open so people can make their own decisions.

[00:06:12] And the same goes for you no matter what kind of content you're making, I think you have an ethical obligation. To at least ask these questions. Am I doing what's right? Am I being truthful? Am and am I sharing all the information or am I letting the audience know that it's only a part of the argument?

[00:06:28] The third ethical issue that comes up for me is respect for privacy. When you're sharing personal stories or information about people without their consent, especially if they're not a public figure, well that can be an invasion of privacy recording a person without their permission. Invades their privacy publishing their interview.

[00:06:48] If they didn't expect it all to be published or they thought they were gonna have a right to edit or or approve the finished content, that also can be an invasion of privacy. [00:07:00] Now diversity and representation is another ethical concern. Like all media, podcasting has received a lot of criticism for its lack of diversity of voices and topics and perspectives, and we're getting better.

[00:07:13] But I think we need to ask ourselves, is there an ethical responsibility? I. To amplify diverse voices and challenge biases to, to make up for past bias and mis misdeeds and things, or at least to level the playing field. And if you're a network owner or a producer, you're hiring a team for your show.

[00:07:32] I think it's very important to consider diversity and representation. We are living in a time right now where courts have decided that things like . Giving you know, affirmative action or giving preferences based on diversity or, or those kinds of things may not exactly be okay for public institutions, but I think it's still a good idea to be asking these questions because after all, we want our media, our information to [00:08:00] reflect the society in which it lives and not just one point of view.

[00:08:05] Next up on my list is sponsorships and advertising and disclosures. Failing to disclose that content is sponsored or that it's an advertisement that's misleading. Listeners about the impartiality or the authenticity of the content that surrounds it. And this goes for affiliate ads, of course, you know, if you're telling somebody about a great product.

[00:08:24] And you tell them where to get it and that where to get it. Link is a, is a affiliate link of some sort. They have a right to know that you're gonna make some money if they follow that link. And this is true for you know, various other kinds of ads as well. And I've spoken about pay to play podcasting where the guest actually pays the host for

[00:08:43] The opportunity to come on the show. I think audiences have a need and a right to be told when that's what's going on. I think it calls for clear conspicuous disclosure of any financial benefit, beneficial relationship. It's just the right ethical thing to do in these situations.[00:09:00] Your mileage may vary.

[00:09:01] You're gonna think about these things for yourself, but I think it's always better to be transparent and open with your audience. They will respect you for it. They will understand, Hey, we all do these things and we have ways that we, you know, we have to make a living. Right. The audience will understand and recognize that, and I think they're much more likely to think less of you if you don't share the transparency than if you do.

[00:09:23] Next up content warnings and sensitivity. You know, there are some podcast topics that could be triggering or distressing for certain listeners, and ethically, I think podcasters should consider providing content warnings, topics, things like mental health issues or violence or explicit content come to mind right off the bat, and I've got a few more a little later on.

[00:09:44] These are the kinds of things where I think you should warn your audience. Hey, we're gonna be talking about . An act of sexual violence or an act of you know, home invasion or something like that. And if that's a topic that, that pushes your buttons, maybe you don't wanna listen to this episode, something along those [00:10:00] lines.

[00:10:00] And frankly, it could help you attract audience as well. Exploitative content I. There are concerns around true kind, true crime podcasts and those that delve into personal traumas where the content might exploit the real life victims and their families for entertainment or advertising value. At Podcast Movement last month, I attended a session that really got me thinking.

[00:10:24] It sort of pushed my buttons 'cause you know, I'm, I'm a First Amendment guy, freedom of speech, freedom of the press. But in this panel, several people who had been . The subjects, the victims of crimes that had been reported on various true crime podcasts. They expressed a point of view that I didn't fully agree with, that the podcasts should have gotten their permission to tell these true facts about what had happened to these people.

[00:10:47] Now, as a firm believer in free speech and press, and the public's right to know and the need for openness, I have to admit, this really got me thinking here. These people were victimized once. By the doing of the crime. And then [00:11:00] in their view, again, by the content creators that were selling, telling, excuse me, their stories.

[00:11:05] That's, that's a Freudian slip. They were telling their stories and they were selling their stories. They were making money off of them and essentially stealing a little bit of their dignity and making them relive some of the feelings that they experienced during the crime or about. Having been victims of the crime now under the law, these stories are perfectly fair.

[00:11:24] Game facts are not protected by copyright law. Information that is public can't be embargoed or limited in any way, but we all need to be really careful and mindful when we start exploiting people's experiences, their lives. If we're not engaging with them and sharing with them, we need to really think about

[00:11:42] What's the value? What am I doing for society by sharing this and who am I hurting now? Sure. Sometimes the right thing will be to tell the story with or without their cooperation and consent, but that will not always be the case. So have a conscience and think beyond just the titillating story, but [00:12:00] also about what's what it's doing to the people involved.

[00:12:09] Now, manipulative editing is another. Ethical concern, misrepresenting a guest or a situation through deceptive editing of the content can be unethical. It doesn't provide a genuine representation of what was said or occurred, and well, it's just plain dishonest. It's deceptive, it's wrong. It. In some instances it may be illegal.

[00:12:31] It can certainly bring a world of hurt down on the podcaster. So make sure you're doing the right thing here and you know, it's one thing to cut out the ums and uhs, but if you're changing the meaning of the sentences, people are saying that's a problem. Monetization and paywalls. Well, with the rise of exclusive content platforms and subscription models, there has been some debate about access to information, the commodification of content, and the potential division between paid and free listener [00:13:00] tears and and the stratification of audiences and so on.

[00:13:03] Now, earlier I mentioned that the public has a right to know, but I don't think that means that everything has to be free. But it also doesn't make it okay to keep everything behind a paywall. I think we need to strike a balance so that we have an informed public and, and that the audience can access information that.

[00:13:22] Excuse me. That said on the other side of this, as consumers of content, I think we should be prepared ethically to make sure that the makers of the content we find valuable are compensated for it. Whether that's by paying them directly for the content through subscriptions or, or whatever, or purchasing their products and services, or just making donations.

[00:13:44] I don't think it's any more ethical to consume everything for free without some kind of value exchange than it is to lock everything up behind, you know, behind a, a fence or a a paywall. So I think that's an important concern. Now, engagement and feedback has ethical [00:14:00] issues as well. I. Podcasters thrive on interaction with their community.

[00:14:04] They really want to have the audience reach out and share their thoughts and ideas and those kinds of things. And they want to handle criticism, and they wanna consider feedback. And how we do that can have ethical implications, ignoring or silencing certain voices, for instance, that could lead to a skewed or a biased representation of opinions and ideas.

[00:14:25] So that's another one. What about content that's directed at kids? You know, there's a lot of child oriented storytelling out there. What are the ethics around that and what are the ethics around running ads in those things? Or what if you're doing a sto telling a story and you're talking about a particular toy?

[00:14:42] That leads the child to want that toy and to nag mom and dad for it or whatever, or maybe about how to use a particular toy in a way that's not really intended. There's a lot of potential risk there in broadcast television. Children's TV is highly regulated and the rules around advertising in kids TV is are very, very [00:15:00] strict.

[00:15:00] So we should be at least thinking about this now. Certainly we shouldn't lob F-bombs around into the years of our, of our kids or present grownup subject matter, and we should let parents know what to expect from our content and stick to those expectations pretty carefully. But I think that goes further than that.

[00:15:15] And also we need to think about adult content. When is it okay to share adult content, whether, whether you consider it obscene or indecent, or pornographic or smut, that's sometimes just in the eyes or the ears of the beholder. Again, we're not talking about broadcast media, so we don't have the F C C regulating what can and can't go out on our airwaves, but labeling is still probably the ethical thing to do.

[00:15:39] So again, people aren't surprised and offended or, or You know, taken aback by the content that they hear. And on the flip side of this, is censorship networks and hosting companies and others, should they be allowed to decide what content they will and won't carry? Well, a court recently ruled that the government isn't allowed to use coercive [00:16:00] tactics.

[00:16:00] That's threats of antitrust and investigations and things like that. To get private companies like Facebook and Twitter and LinkedIn and, and Instagram and TikTok, they're not allowed to use those course of tactics to get these companies to take action against certain speech. But these companies certainly can do so on their own, their private actors, if they determine that it's in their and their shareholders' best interest to do that, they should be allowed to do that.

[00:16:27] But, There is a concept that is called the common carrier, the treatment, where some businesses, usually it was originally it was the railroads and later the phone com, the telegraph and the phone company, they were basically told that they are not allowed to discriminate on the basis of what they're carrying.

[00:16:43] So the railway wasn't allowed to decide not to ship a particular package just because it contained . You know, religious symbols or something like that, or a phone carrier couldn't decide that it wouldn't provide service to telemarketers or what have you. No, they had to carry everything [00:17:00] and they were given some legal protections in order to make that.

[00:17:04] A little more palatable if nothing else. Now, maybe we should expect that some of our service providers should operate that way too, and also have the legal protections if they do. The Communications Decency Act sets up some legal protections, but it doesn't impose on anybody a requirement to carry everything.

[00:17:21] So that's some of the debate that's going on here in the US Congress these days and when they can talk about anything that isn't just pure political. You know, bomb throwing at each other. So there's, there's that. Now here's another one. If you use AI to help

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Legit Podcast Pro
Exploring Podcasting through the legal and business lens from The Podcast Lawyer™, Gordon Firemark

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Gordon Firemark

Gordon Firemark (gordonfiremark.com) has practiced media and entertainment law in Los Angeles since 1992. Widely known as The Podcast Lawyer™ (ThePodcastLawyer.com), he has spent his career helping creative industry professionals make deals that make sense, and that get their productions developed, financed, produced and distributed. His practice also covers copyrights, trademarks, business transactions, and corporate matters for clients in media and entertainment.