Legal and Ethical Considerations for Your True Crime Podcast

Imagine you’re sitting on the next big true crime hit. The nonfiction genre has ballooned in recent years across media, particularly in the podcasting space where production costs are relatively low and there are fewer gatekeepers to content distribution. Long gone are the days when the choice was among America’s Most Wanted, 20/20, Cold Case Files, and Unsolved Mysteries. The first seasons of the true crime podcast Criminal and the investigative journalism podcast Serial were released in 2014. Netflix’s first season of Making a Murderer came out in late 2015. The immediate popularity of these series was evident in their ratings, and they have been followed by rapid exponential growth in the true crime and investigative journalism entertainment space.

While true crime is often equal parts edge-of-your-seat entertainment and hard-hitting journalism, it’s important to remember that part of your job as a journalist is to stay within the bounds of the law and maintain a high level of ethical standards. Here are some tips for how to do so.

(1) Observe best journalistic practices in conducting research and
investigations.

One of the easiest ways to stay on the right side of the law – most critically,
to enjoy the full protection of your First Amendment right to speak freely – is
to follow universal standards of ethics in journalism. If you don’t work for a
large media organization that promulgates its own code of ethics, don’t worry.
The Society of Professional Journalists publishes their Code of Ethics
online, and several news organizations such as The New York Times also make their internal ethical
guidelines available to the public.

n keeping with the high standards of journalistic ethics, here
are some key suggestions (but by no means an exhaustive list) for investigating
and reporting on your true crime story:

• Be careful about making promises to, or developing personal
  relationships with, sources. Whether a source is asking to be off the record or
  for anonymity, or has an expectation or implies an expectation of a quid pro
  quo exchange such as a favorable portrayal, making promises to sources can
  quickly become tricky when later reporting your story. Personal relationships do
  develop over the course of cultivating a source, and whether by mere appearance
  or in fact, these dynamics can undermine your authority on a subject and imply
  a bias, depending on the circumstances. In every situation, maintaining
  professionalism will be key.

• Don’t get involved in any formal investigation. Remember – you’re
  a journalist, not a member of the police force, the prosecution team, or any
  other public agency. Don’t offer rewards for information or make assurances to
  victims or families, or the public, that you will get to the bottom of
  it.

• There is always more than one side to a story. If you expect to
  make accusations against any individual or company in the final story, ask them
  for comment. Protect your neutrality by always giving the “other side” the
  opportunity to counter any allegations or defend their actions.

• Know your rights (and the legal limitations) when it comes to newsgathering. This includes access to private property, whether you can record conversations without every participant’s permission, when to disclose who you are and what you’re doing and engaging or citing anonymous sources (especially government employees), and more. These rules may vary by jurisdiction, and things can get even trickier when dealing with digital media or communications that cross state lines.

(2) Vet your material from development stage through production.

When talking about real people and actual events, especially when criminal
activity is alleged, you should be wary of crossing the line in certain areas
of law, such as defamation and the right to privacy, and in some instances
copyright law and the right of publicity. Fact checking and legal vetting
should be part of your process.

A defamation claim could arise if you make a false statement of
fact about another person that injures their reputation, and you did so either
negligently or with what’s known as “actual malice.” If the plaintiff is a
private individual, you would only have to be negligent in making that
statement, whereas if the plaintiff is a public figure you would be at fault if
you made the false statement with “actual malice,” that is, knowingly or
with reckless disregard for the truth.

A false light claim could also arise (depending on the
jurisdiction) if you widely make a statement that portrays a person in a “false
light” that would be highly offensive to a reasonable person. The
statement need not necessarily be a false statement of fact, but rather, create
an implication, or inference, that is not true. In some ways this type of claim
is similar to defamation, and they sometimes overlap, but it technically falls
within the realm of privacy law. Note that reputational damage does not
generally have to be proved under a false light claim – the harm caused here is
emotional distress.

You could also face a claim for the publication of private facts,
which is another type of privacy violation, if you publicly disclose a private
fact about an individual that is offensive to a reasonable person, and the fact
is not one of legitimate public concern. Unlike defamation and false light,
there’s no requirement that the disclosure of information be false either in
fact or in implication; rather, this sort of claim tends to arise when private
information is made public that embarrasses the individual who is the subject
of the statement. 

In addition, a right of publicity or misappropriation claim may
arise if you use a person’s name, or identifiable features such as their
likeness or voice, for commercial or other exploitative purpose. In most
states, the ability to use a person’s name or likeness in expressive works such
as films, books, and podcasts are protected by the First Amendment, and
liability will not arise if the person’s name or likeness is also used in
advertising for that expressive work provided it is truthful and therefore
“incidental” to the protected expression. That said, the scope of right of
publicity and misappropriation laws vary from state to state; for example, some
states grant postmortem rights of publicity while others do not.

Finally, a copyright infringement claim could arise in a true
crime story if you’re using third-party copyrighted materials without
permission. You may need to consult an attorney for a fair use review of your
podcast, in particular if the subject of your true crime story is or was an
artist such as an author or musician, and you want to use their work in your
story.

It’s a good idea to consult a lawyer early in the process when
dealing with the type of risky subject matter typical of true crime stories, so
you can avoid potentially costly or time-consuming changes later on in
production. For starters, remember:

• Just because you’re covering a high-profile case receiving
  attention across the media, and another media company (or five or ten) said
  something, it doesn’t mean it’s true. You generally won’t be protected from
  liability for defamation merely because you’re re-releasing information or
  materials first published by another source.

• So too can copyright infringement liability arise from
  republication. Another project’s use of third-party material does not
  necessarily mean you’re free to use it, too.

• If you’re digging back into a cold case, tread carefully when
  raising new facts and allegations, even against people implicated but never
  charged or convicted when the trail was still hot.

Be especially careful with secondary and tertiary figures in the story – in many cases, these minor figures are the ones who complain if they are portrayed in a negative light.

(3) Be creative (but not irresponsible!) with your advertising and
promotional strategies.

It’s common for ads promoting a podcast to include snippets of
statements and materials from one or more episodes in the series. In the
promotional context, however, editing for duration and the addition of music or
other sounds and materials can change the meaning or implication of a
statement. In this way, you should be careful when promoting high-risk material
and you may want to consult a lawyer to separately vet all marketing and
advertising.

Similarly, additional copyright issues could arise if you’re using
third-party copyrighted materials in the podcast and you want to use some of
those materials in advertising. Do not assume the use in an ad is likely to
qualify as fair use just because the use in the episode itself may be. The same
considerations in the context of the content of the podcast do not necessarily
apply to advertising for the series.

Finally, be careful what you agree to when entering sponsorship or
other advertising deals. If a sponsor is asking for the right to use material
from your story – including the names of individuals or snippets from episodes
– to cross-promote their status as an official sponsor, be careful not to grant
rights to use a person’s name and likeness that you do not have. A right of
publicity claim could arise if you do.  

So be creative with promoting your hard-hitting story, but not so
much so that you’re violating the law.