by Tee Morris

While I was in Ontario, Califor­nia for the 2007 Podcast and New Media Expo, a fellow podcaster (code name: Peacekeeper) got wind of my disdain for another podo­sphere personality (code name: Dink). Dink had pulled a stunt at Dragon*Con 2007 that can only be described as self-serving and unprofessional, and he pulled this stunt at the expense of a good friend of mine. Peacekeeper was shocked. “Dink is a great guy,” she insist­ed; and later that evening, Peacekeeper took the initiative and brought me and Dink together to make “nice-nice” with each other. Words were exchanged, and these were words I don’t regret. They were honest, sincere, and said with conviction.

They were also being recorded. With­out my knowledge or consent.

Dink proceeded to take this private conversation to a podcast (code name: Amateur Hour) where they proceeded to give a snarky play-by-play commentary, both Dink and Amateur Hour enjoying a good time at my expense with their one-sided spin on this unexpected (and did I mention private?) chit-chat with me.

There are some things you just don’t do in podcasting, and recording another person without consent is definitely in the Top Two. We cannot ignore stan­dards that are currently in practice on the professional broadcasting level. Oth­erwise, we are no better than Dink and Amateur Hour, a group of geeks in the basement of the science building armed with recording equipment.

An argument of “But Tee, it’s a pod­casting expo. You should have expected to be recorded…” holds no ground here. Here’s why.

Recording without consent is un­ethical. For some, “true” podcasting is slice-of-life audio, completely raw and candid. It can be, but there are times when people want to talk off-the-record. If a friend confides his or her deepest, darkest secrets and you podcast them, it is a betrayal of trust. Show hosts who regard all dialog as potential show con­tent — even content recorded without consent — can make it harder for others to conduct interviews both inside (and outside) the podosphere.

Recording without consent carries consequences. No matter how juicy the audio, some things are better left unsaid. If you’re recording conversations without the other party’s consent, you open the door for damages against the people you are covertly recording. End results could be anything from profes­sional reputations tainted to personal relationships ruined. Words, particularly in audio, carry weight and repercussions in people’s lives. Open honesty is not always the best policy, especially if the honesty is intended for your ears only.

And I’ve saved the best for last…

Recording without consent is a crimi­nal offense. Dink and Amateur Hour were probably unaware that each state has its own law that prohibits recorded conversations without consent. Califor­nia law makes it clear: all parties record­ed must have prior knowledge and give permission. If the matter does make it to court, fines can be as low at $750 (eh, not so bad), to as high as $10,000 along with jail time up to five years (yeeikes!). Hire a lawyer clever enough to make this a slander case in which you sue based on an episode’s downloads, and you can start shopping for some serious studio upgrades.

So, let’s say you have an H2 within reach and (oops!) the record button is “accidentally” pressed. And let’s say you have captured some gripping audio, ready for a Mystery Science Theatre 3000 treatment. Ask yourself if this kind of content is worth the risk, not just to your own podcast, but to the commu­nity on the whole? While the FCC does not govern podcasting in any way, state and federal laws still apply. If enough podcasters believe that what they do is above the law, this will catch the FCC’s attention and usher in an influence none of us wants.

And from the one “punk’d by pod­casters,” you should also ask yourself if the offenders are worth going after. I have legal options. Is the time and trou­ble to file litigation worth it? Chances are pretty high I’ll be vilified on their podcast and they’ll make themselves martyrs. Even if I deem the potential fall­out an acceptable risk, such legal battles are difficult to win in a court of law. And if I win, will the payoff really happen? This matter would be tried in civil court, and victory there is no guarantee of a payoff. (Just ask OJ.) Is the trouble, time, and stress of pressing charges really worth it?

I’ve heard Dink’s music and Amateur Hour’s podcast. No, they are definitely not worth it.

Tee Morris is the creator of the Bil­libub Baddings and MOREVI podcasts and is the coauthor of Podcasting for Dummies. Find out more at www.teemorris.com. Send email to tee@bloggerandpodcaster.com.