In recent weeks, we’ve written about a number of legal issues that need to be considered in connection with podcasting – getting releases from guests, making sure that ownership of the podcast is clear, and considering music royalties. Another issue that I discussed in my presentation on legal issues for broadcasters entering the podcast industry at Podcast Movement in late July was one of sponsorship identification. Broadcasters are familiar with the FCC requirements for the identification of those who provide something of value to a station in exchange for any on-air content. While the FCC does not regulate podcasting, those issues cannot be ignored even in this online medium.
As we have written before (see our articles here and here), the Federal Trade Commission has rules similar to the FCC about identifying when the podcast producer has been paid to say something in his or her podcast. The FTC requires that disclosure of sponsored material be “clear and conspicuous.” So, even on short-message social media applications like Twitter, influencers paid to tweet about a product or service are required to identify their sponsored message in some way – like a “#ad” in the tweet to identify that it was sponsored. In the podcast world, where podcast hosts often do “live reads” of sponsor’s messages, the host needs to be careful to meet the FTC’s clear and conspicuous requirements. So if the commercial message is integrated so closely into the podcast content that the listener cannot tell that it is a commercial message, some sort of disclosure is required. Similarly, if the host of the podcast is using his or her social media to promote the sponsored message in the podcast, sponsorship identification would be required there as well. I’ll be talking about this and other legal issues for broadcasters in connection with their podcasts in a webinar for the Michigan Association of Broadcasters (and many other state broadcast associations) on Thursday. If you are interested, check with your state broadcast association to see if they are participating in this program.