9-29-14
Successful radio personalities need to be creative geniuses. One has to be a genius to create three or four hours of engaging, fast-paced, entertaining content five days a week. They also need to be smart enough to know when a bit is potentially defamatory. When Kansas City morning personalities Alfentra and Danny Boi asked listeners whether they knew of any local porn stars, it arguably had the creative potential to be both funny and defamatory.
They received a text message with the name Ashley Patton. A second text followed with the same name.
While the morning personalities were undoubtedly glib on the radio, their keyboarding skills left something to be desired as they fat-fingered Ashley Payton, rather than Patton, into Google. Ashley Payton indeed had pornographic images of herself on the web. As part of the on-air bantering, the morning team stated that it would put up Ms. Patton?s (not Ms. Payton?s) name on the station?s website on their self-created ?unofficial porn list of Kansas City Metro.?
The local Ashley Patton (not Ms. Payton with the nude photos), however, was a law student. The local Ms. Patton was just awarded damages of $1M in a lawsuit against the radio station licensee for this sequence of events.
Leaving aside whether it is ever good judgment to make fun of a law student ? (recall, for instance, Sandra Fluke and Rush Limbaugh), what are the lessons that both radio personalities and management can glean from this tale of a morning show radio bit gone bad.
The law on incidents such as this one vary from state to state. What may be non-actionable as a matter of law in one state may invoke the specter of a humongous legal liability in another. Therefore, I will not attempt parse or generalize the law in this case other than to describe what happened.
Ms. Patton made two Kansas state law claims in her lawsuit: (1) false light invasion of privacy, and (2) negligent supervision. In the litigation, the radio station filed a motion for a summary judgment. The court determined that the false light invasion of privacy claim was one for the jury, but dismissed Ms. Patton?s claim of negligent supervision.
Here is a link to the judge?s summary judgment ruling: Memorandum and Order-Summary Judgment (https://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2013cv2186-77). This ruling is well worth reading for a recitation of the facts agreed to by each side of this incident.
The judge?s directed verdict to Ms. Patton?s negligent supervision claim held that ?[Ms. Patton] has presented no evidence of a physical injury, just emotional distress in the form of embarrassment, humiliation, feeling upset and shaken, anxiety, and sleeplessness. Accordingly, Kansas law compels judgment against [Ms. Patton]?s negligent supervision claim as a matter of law.? Thus, the negligent supervision claim did not go to the jury and was dismissed in a partial win for the radio station.
The claim of false light invasion of privacy, however, survived summary judgment and went to the jury with the judge stating that:
?there is evidence from which a reasonable jury could conclude that [the radio station] acted with reckless disregard when it broadcast [Ashley Patton?s] name and identified her as a local porn star. ? The summary judgment facts establish that Ashley Patton is not a porn star. A jury could conclude that defendant acted recklessly when its agents decided to broadcast a falsehood provided by text message from an unverified and anonymous source and its lone attempt to verify that falsehood consisted of a flawed internet search that returned pornographic images for a person not the [Ms. Patton]. Further, during the broadcast, the on-air talent said that they would put a list of ?alleged? porn stars on the radio station?s website. ? In the end, a reasonable jury might find that Afentra and Danny Boi did not act recklessly when they broadcast [Ms. Patton]?s name and called her a local porn star. Conversely, a reasonable jury could also find that defendant?s agents acted recklessly when they broadcast [Ms. Patton]?s name and identified her as a local porn star based only on information received from an anonymous, unverified source and an erroneous internet search.?As we now know, the ?reasonable? jury found in Ms. Patton?s favor and awarded $1M in damages, $250,000 for actual damages and $750,000 in punitive damages.
There is a portion of the judge?s ruling describing the first phone call that the angry Ms. Patton made to the radio station that should be required reading for anyone in management at a radio station. Assume for a moment that the first phone call from Ms. Patton to the radio station?s program director had gone differently, if perhaps if the program director did not suggest that Ms. Patton might be a porn star, or if perhaps the program director had simply called Ms. Patton back as he promised to do? The judge writes:
?Sometime after noon that same day, [Ms. Patton] called the radio station and reached Program Director Scott Geiger. Until the phone call from [Ms. Patton], Geiger did not know there had been a segment about local porn stars on ?Afentra?s Big Fat Morning Buzz? that morning. [Ms. Patton] told him that the morning show had called her a porn star and that she was angry. In response, Geiger asked [Ms. Patton], ?Well, are you?? [Ms. Patton] replied that she was not and Geiger replied, ?How do you know that you?re not a porn star?? [Ms. Patton] stated that she was in law school and that she did not ?do anything like that.? ? At the conclusion of the phone call, Geiger told [Ms. Patton] he would call her back. But he never did.?The takeaway here for radio personalities and management is fourfold. First, be acutely sensitive to a member of the public calling to complain about on-air content. Know enough about media law to be able to identify when on-air content might be of such a nature as to be something someone might file a lawsuit over. Had the program director here not initially been snarky to Ms. Patton, and then once the error was discovered he had fallen all over himself to rectify the error, his radio station might have never have been sued. Also, for program directors and middle management, keep in mind that upper management, and possibly the station?s lawyers, should be involved at the first hint of a situation that could lead to legal liability. Not only does involving upper management often defuse a problematic situation involving an aggrieved third party, it also brings expertise and experience to what may very well be a complicated legal situation.
Second, if there is edgy, provocative content on the air, be absolutely sure that there is an understanding by air personalities and management of what can constitute legally-actionable content in your state. With the facts of this case, mistakenly identifying a member of the public on the air as a ?porn star?, putting that person?s name on a website in an ?unofficial? listing of porn stars, and repeating the on-air mistake by leaving up a podcast of the error even after the error is made known to management, has the potential in many states to lead to a lawsuit.
Third, any program content that has the potential to expose a person who is not a public figure to hatred, shame, disgrace, contempt or ridicule, injure a person?s reputation or cause the person to be shunned or avoided, or injure the person in his or her occupation, is likely to be legally actionable.
Finally, be absolutely certain that the radio station?s media content insurance policies cover all of the ancillary activities engaged in by today?s radio stations and radio personalities. Here, not only was the content at issue broadcast, but it was also posted to a website and distributed as a podcast. While there is no suggestion in this case that the station?s insurance did not fully cover the defense and liability, it is the prudent manager and owner that periodically checks insurance coverage to be certain that all forms of content created by the station and its employees are covered.
Mistakes will occur in the running of any business. The more that creativity and edgy programming is involved, the more likely it is that someone will be offended. The challenge is to stay on the side of the line where creative content does not turn into a lawsuit.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or jgarziglia@wcsr.com.
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Ragland (pictured left) says it's too soon to tell whether DRT and Wyncomm will sue or demand license fees from small broadcasters. "If a broadcaster does receive notice of a lawsuit or even a demand letter, they should consider contacting an attorney with patent litigation experience. Like the patents involved in the MAD lawsuit, the three patents asserted by DRT and Wyncomm are quite old. Two of the DRT/Wyncomm patents expire on November 15, 2013 and the other one expires in June 2014. It is not unusual for so-called ?patent trolls? to file suit when the term of the patent is nearly over. In such cases, the patent holder seeks royalties from the alleged infringement rather a court order stopping the alleged infringement. DRT and Wyncomm have not sought an injunction prohibiting the broadcasters it sued from using the equipment at issue."
damages.
Attorney David Oxenford is with Davis Wright Tremaine. He says music licenses that are directly negotiated between music users and rights holders are traditionally the best evidence of the value of music. "In recent rate court cases involving performing rights organizations, direct licenses formed crucial evidence of the value of music rights, in some cases resulting in a lowering of royalty rates. If Sirius XM is successful in its suit, and if it is in fact able to negotiate direct music licenses for substantial catalogs of music at rates lower than what it has paid under previous rate decisions, that might provide good evidence of what rates should be. Lower direct licensing rate could also impact other proceedings dealing with the sound recording royalty rate, possibly including proceedings for webcasting royalties #a proceeding that will also affect the rates that broadcasters pay for streaming their signals)." 
Department, following claims of antitrust violations by those organizations. In fact, BMI was originally created by radio broadcasters as an alternative to ASCAP. And more recently, the Radio Music Licensing Committee just entered into a new settlement agreement with ASCAP this year following RMLC's own suit also filed in the US District Court for the Southern District of New York. SoundExchange is the new kid on the block covering in the digital music licensing world. This case could put SoundExchange's authority to set rates and maintain its unique position in the digital music licensing arena to the test."
highlights that over-the-air radio is exempt from performance fees for its broadcast of musical recordings. "Second, rates paid by SiriusXM for both performance fees and streaming can and will have an effect, either positive or negative, on future rates likely to be paid by broadcast radio stations if the law is changed to require radio broadcasters to pay performance fees, and for the performance fees that radio broadcasters must now pay for streaming of programming."
