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Do you like to incorporate exciting new tech, like video streaming Apps, into the media mix for your business? Then wait! You need to read this article first.

Sharing video content in a live setting is no new phenomenon. For years, television and online broadcasters have provided viewers with access to live content, broadcast directly to their television or computer. The benefit of this, generally, is that viewers have immediate access to certain content, and broadcasters are able to generate a larger audience than usual.

Businesses have long benefited from live broadcasting by placing products, people, logos and advertisements in live television or radio broadcasts.
However, businesses are accutely aware that with a live television or radio broadcast comes the risk that something may go wrong on air. To prevent this, they rely upon the professionalism and expertise of the particular broadcaster with whom they are advertising.

With the emergence of new Apps, such as Periscope, it is easier than ever for advertisers and businesses more broadly, to use live broadcasts in new and innovative ways to promote their brands and new products and services.

Periscope is an App, which is available on the iOS and Android operating systems. It allows users to stream live video direct from their smartphone, directly to other users, in what is called a ‘broadcast’. Broadcasts are available to users both through the Periscope App and through Twitter, as Twitter users are able to post links to Persicope broadcasts via their tweets.

Periscope was purchased by Twitter in March of this year for a reported figure of $100 million. Since its purchase, the Periscope App has experienced a great amount of success and has an enormous capacity to grow.

While this opens an entirely new range of advertising and promotional opportunities, the risks of something going wrong on a live broadcast through Periscope are greater than those on live television. This is because Persicope does not come with a team of people, whose job it is to prevent things from going wrong.

So, what can you do as a business to mitigate your legal risks, while taking advanatage of this exciting and growing new App?

Here are some potential issues, which might arise from your use of the Periscope App and some simple steps on how to avoid legal liability:

Copyright Infringement
When making a live promotional broadcast in order to promote your business, it is important to consider that certain copyright material may be captured.

For example, imagine a business is opening a new store and intends to make broadcasts via Periscope to promote the opening. There might be certain music playing, or perhaps even a live performance taking place in the background of the broadcasts. In this instance, certain copyright issues may arise.
In this scenario, the business may be considered a ‘maker’ of the films which are broadcast, and therefore need to seek a licence for the music or other performance, which is being played in broadcasts.

If the proper licences are not sought, and the copyright owners take offence to the unauthorised use of their content, what may seemingly be innocent business promotional activity may result in a law suit.

It is important to note that this may also extend to other material, such as artwork or films, which may find their way into a broadcast.

Breach of Broadcasting Guidelines and Defamation
The behaviour of the people who are captured in a broadcast is important. If they engage in any offensive, defamatory or inappropriate behaviour, your business may attract legal liability.

Taking the example where the business is making its own broadcast of the store opening, there are certain broadcasting guidelines which it needs to follow. These are largely captured within Schedules five and seven to the Broadcasting Services Act 1992. Put simply, if anything is broadcast, which could attract a rating of MA15+ and above, the broadcaster may be in breach of the Act.

Also, if anybody on a video makes comments which defame another person on a broadcast, the broadcaster exposes itself to the risk of paying damages for damage caused by the defamatory comment.

Getting Permission/Terms of Entry
Often the terms of entry into a festival, historical site, museum or other like place will involve an undertaking not to create videos, photograps or broadcasts without a permit.

For example, if a business wishes to incorporate the Kakadu National Park site in Australia’s tropical north, into its promotional material, it must first seek a permit from the Australian Government. A permit application fee of $250 per day (or part of a day) is payable under the Environment Protection and Biodiversity Regulations 2000 for filming.

If a business crosses any legal conditions of entry, or fails to obtain the appropriate passes and permits, it exposes itself to liability for, at the very least, breach of contract, and at most, liability for breach of any relevant statutory scheme.

No matter where you make your broadcast from, if you are making it for a commercial purpose, including for promotional purposes, you must get the permission of anybody, who is identifiable in the broadcast.

Therefore, in the example of a store opening broadcast, a broadcaster employed by the business opening the store would need to seek the permission of people who were to appear in the video before the broadcast was made. As broadcasts are made live, any person who appears in the video cannot retroactively decline to be in the broadcast.

Avoiding these issues
The best way to avoid all of these potential legal issues is to plan ahead and take the following precautions:

  1. Consider whether there may be any copyright material in your broadcast. If you think that there will be, you should obtain authorisation from the person who owns copyright in the material;
  2. Consider who will be speaking in the broadcast. Warn the people speaking not to make any defamatory or offensive comments, which may attract legal liability for your business;
  3. Ensure that you have the proper authorisations to broadcast from a broadcast location. If a place has terms or conditions of entry, or is an historical site, alarm bells should be ringing; and
  4. Ensure that before you film anyone, you ask them for permission to do so.

These simple precautionary measures, should bring you some way to avoiding some serious legal issues which may arise from what may otherwise seem to be an enjoyable and innocent use of a new and exciting piece of technology.