The Legal and Regulatory Issues in Podcasting

One of the features that made podcasting attractive to early creators was its lack of the regulatory burdens that traditional broadcasting carried. No broadcast licenses, no FCC content rules, no carriage negotiations. But podcasting is not a legal free-for-all, and as the medium has grown in reach and commercial significance, the legal landscape has become more consequential.

Copyright is the area most podcasters are likely to encounter first. Using music you do not have a license for in your podcast is infringement. This includes background music, intro and outro tracks, and clips from songs played during episodes. The fact that podcasting lacks the automatic content identification systems that YouTube uses does not mean violations go unnoticed. Copyright holders actively monitor and enforce their rights in audio, and a complaint can result in your episode being removed from platforms or a legal claim for damages. Use only music you have licensed, that is in the public domain, or that is released under a Creative Commons license that permits podcast use.

Defamation law applies to podcasts the same way it applies to any published media. If you make a false statement of fact about a real, identifiable person and that statement damages their reputation, you could face a defamation claim. This applies whether the statement is in an interview, a solo episode, or an offhand comment during a conversation. The defenses, truth, opinion, fair comment, are the same as in other media, but the burden of invoking them in a legal proceeding is real.

Endorsement and testimonial guidelines from the FTC require that material connections between a podcaster and a product they recommend be disclosed clearly. This applies to paid sponsorships, but also to affiliate arrangements, gifted products, and any other relationship that could influence a recommendation. The disclosure needs to be placed where the audience will notice it, which in practice means at the beginning of the relevant segment or episode.

Privacy law is an evolving area that affects podcasters in a few ways. Recording a conversation without the other party's knowledge or consent can be illegal depending on jurisdiction. Most states require only one party to consent to recording, meaning you can record a conversation you are part of. But some states and countries require all parties to consent. If you record guests remotely, understanding the applicable laws for your jurisdiction and your guests' jurisdictions is important.

Contractual obligations can arise in podcast relationships that people do not always think through carefully. Guest release agreements, co-host agreements, production company arrangements, and sponsorship contracts can all create binding legal obligations. Having clear written agreements for significant relationships, and having those agreements reviewed by a lawyer when the stakes are high, prevents disputes that can damage both the show and the relationships involved.

Platform terms of service are a form of quasi-regulation that podcasters are subject to. Spotify, Apple, and other distribution platforms have content policies that can result in episodes being removed or accounts being suspended. Understanding these policies and what content they prohibit matters especially for shows that cover controversial or sensitive topics.