UAE / Technology, Media and Telecommunications
Charlotte Sutcliffe Associate, Digital and Data
There’s no doubt that podcasting is a convenient and worthwhile medium of entertainment and expression. It is (usually) free to listen to and cheap to produce. Listeners can tune in anywhere: on their way to work, at home, and whilst cooking or getting ready for the day. In the UAE alone, there are around 1.5 million regular podcast listeners. This means excellent exposure for ideas to be shared, individuals to be informed, and products, services and events to be promoted.
Dubai PodFest, recently discussed the value and future of podcasting. There, it was discussed just how popular podcasting has becoming during the height of the pandemic (and not continuing). It was a way for people to connect during a time of immense disconnection and loneliness. It can also be highly lucrative.
In the MENA region, there are a few ways to make money from podcasts:
Sponsorships, which can be further divided into ads and sponsored content
Production and services
Live events
Membership and subscription
Licensing and sales
Brand commissioning – i.e. food company commissioning a cooking show
When starting out, budding podcast creators and brand ambassadors need to consider their concept, develop their idea and then take steps to produce it. This process usually requires multiple contracts, facilitating actions such as writing scripts, designing artwork to promote the podcast, renting podcast rooms, subscribing to hosting sites, engaging with marketing experts, partnering with brands, engaging a host or guests, and then distributing the podcast itself. Throughout this process, there are certain legal issues to be considered. This article will identify certain legal pitfalls that podcast producers, and brands partnering with podcast producers, need to be aware of when developing podcasts.
Like most polished pieces of marketable content, podcasts usually contain an amalgamation of various rights belonging to different entities. This may include IP rights in the intro and outro music, scripts, artwork, and excerpts used in the podcast. It may also include publicity and privacy rights of individuals featuring in the podcast (including those individuals discussed or referenced in the podcast).
Intellectual property is a bumble of rights that can be owned by a human or non human entity (such as a corporation). The most notable rights relevant to podcasts are trademarks (i.e. the name of the podcast), which require registration to be protectable, and copyright (any literary, musical or dramatic works).
The position under the UAE copyright law is that, by default, the author owns the IP rights in copyright. Therefore, it is fundamental that the podcast producer either creates and therefore owns the copyright, or otherwise has an exclusive or non exclusive right to use it. For this, the podcast producer needs a written agreement to assign or license the copyright to the podcast producer from the author. The typical industry position is that if it is created specifically for the podcast, the podcast producer should own it. If it is a separate piece of IP (eg such as a song used in the intro and outro), a license is required.
Specific caution should be had regarding using music excerpts in podcasts. In the UAE, there is no royalty collection agency. Therefore, the use of music without a license is particularly contentious. Of course, music rights owners want to be compensation for the creativity they put into their music. Therefore, podcast producers should ensure applicable licenses are obtained, or the use falls under an exception to the copyright law (such as fair use), otherwise they could be subject to a legal suit (or at least, some very angry people banging on their door), and this could interfere with the integrity and continuity of the podcast. Furthermore, the podcasting network may wish to own IP. If the podcasting network puts up the studio, script writer, and all technology to put on the podcast, and also negotiates the sponsorship deals, this may seem fair enough. If the podcasting network opts not own it, it may wish to have an exclusive window to use the content before the producer can take it elsewhere.
The rights to use IP need to be addressed in written agreements for the best mitigator to future issues. This includes contracts between the podcast producer and a brands who may want the podcast producer to produce audio and visual content (i.e. film the podcast discussion) for promotional reasons. This right needs to be in the contract with the brand.
Producers need to ensure publicity and image rights from any individuals featuring or referenced in the podcast are acquired (including the host and all guests). Publicity and privacy rights are inalienable from the individual and cannot be owned by or transferred to another entity.
To protect an individual’s rights to privacy and safeguarding their publicity, ensure all individuals sign a short release prior to going on air. This should give the podcast producer (and any distributors) the broad right to publish and display an individual’s image, likeness, voice etc. for the purposes of promoting and distributing the podcast.
The UAE prioritises modesty and privacy in its culture. There are certain themes, topics and activities that are prohibited under UAE law. Podcast producers and the brands working with them should ensure such laws are respected. Contractually , producers must ensure idividuals featuring on the podcast are complying with standards. If something goes wrong with the podcast, the producer must also ensure it has the contractual right to take the podcast down.
The most efficient way for this to be tracked is to include a short guide for all individuals who feature on the podcast which contains all kinds of prohibited topics which should not be discussed. One risk with this, however, is that individuals may over censor themselves out of caution, which is not ideal – the podcast should still be informative and entertaining!
Industry professionals usually ensure that prohibited or offensive activities are not promoted (even if such things are discussed). There are severe penalties for breaches of these laws. Nevertheless, it is worth noting that the risk of penalties for prohibited content is lower if the content produced overseas.
There are also certain areas in content that producers need to be careful of in the UAE. For example, advice regarding healthcare or health products should be avoided as these require a license and / or regulatory approval. In particular, if a brand funds the podcast – ie if episode centres on promoting the brand’s product or service, brand will want to ensure these regulatory requirements are met. Contact our Regulatory team for advice in this regard.
There are three main sources of law regarding prohibited content: the UAE Penal Code, the Press and Publications Law (“PPL”) and the Cybercrimes Law (revamped in November 2021). These laws list the types of content that are prohibited in the UAE. As an example, content should not: criticise any Rules of the Emirates or harm the interests of the UAE, instigate criminal activity, disgrace, defame or infringe on an individual’s private live, or contain false news.
Note there are rumours of a new media law which will amend the PPL later this year.
In addition, the new Cybercrimes Law makes specific reference to uses of an electronic information system or information technology method to make any alteration or processing of a recording, image or footage for purpose of defamation or abuse of another person. In which case, that person shall be sentenced to detention for a period of not less than one year and/or to pay fine of not less than (250,000) two hundred fifty thousand Dirhams and not more than (500,000) five hundred thousand Dirhams. This provision is quite broad in that it applies to using a recording etc for the purpose of defamation or abuse. On that basis, the requirements of a defamation claim do not necessarily have to be proven, as the key to this provision is the intention behind the publishing of the content.
The Cybercrimes Law provides firm rules on misleading or fake advertisements that promote services or goods, both directly or indirectly. Additionally, anyone who divulges, publishes, re-publishes, circulates or recirculates fake news or data, or false, malicious, misleading or incorrect reports or rumors that contravenes the officially announced news, or transmits any provocative promotions that arouse or provokes the public opinion, disturbs the public peace, intimidates the people or harms the public interest, the national economy, the public order or the public health can face hefty fines.
In addition, there is a specific law that prohibits hate speech: Federal Decree by Law No. 2 of 2015 on Combatting Discrimination and Hatred. This law has been much discussed but remains largely untested in the courts. It specifically punishes hate crimes and discrimination with penalties including imprisonment (from six months to fifteen years) and fines of between AED 50,000 to AED 2,000,000.
Breaching these laws can result in criminal liability of podcast producers, brands and / or content creators.
It is also important to note that the UAE Telecommunications law allows the Telecommunications Regulatory Authority (or its licensors) to block offending content including the entire podcast, or a snippet of it.
It is very common for podcast producers to use influencers to feature on the podcast (and also common for influencers to host their own podcasts). One of the reasons influencer marketing is so successful is that influencers are able to create a personal connection with their audiences and gain invaluable insights into what people want. Creative and talented content providers even have an additional advantage of creating advertising material which you aren’t even aware is advertising material. However, influencers should ensure they are complying with advertising laws. For example, influencers should ensure they do not advertise alcoholic beverages. Also, if influencers are promoting products and services within certain categories such as healthcare, real estate, crypto and educational institutions, they should be aware of complying with specific advertising laws.
When producing a podcast, or using one to promote your brand, it is important to be clear on the legal pitfalls from start to finish. Ensuring IP is cleared and content is acceptable are two major ones.
So, given the above, when should podcast producers turn to a lawyer? The obvious answer is when they run into trouble (ie defamation claim, infringement claim or violation of a UAE law), but by then it is usually too late – they are either in legal trouble and / or they have sustained reputational damage. Therefore, it is helpful to follow the tips above, ensure everything is in writing, or ensure a lawyer is engaged at the outset to cover off the most important points. That way, creativity and execution have the main focus!
For more information, please contact Martin Hayward.
Published in July 2022