How to respond when a publication wants you to indemnify them

By Sara Tatelman

Congratulations — a new editor is really excited about your pitch, and you’re really excited to get paid to investigate something you care about. All that’s left is to sign the contract. But then you read it, all nine pages, and your heart sinks. The contract requires you to indemnify the publisher against all damages arising out of a breach of your responsibilities, which include ensuring the copy contains nothing libelous or defamatory.

If that’s a risk you’re not comfortable taking, the first step is to try and negotiate. “One thing I would say to any journalist is read your contract — it’s an offer,” says Alison Motluk, a freelance journalist based in Toronto. “You don’t have to take what they say.”

While it can be uncomfortable asking an editor to change a clause, there’s no harm in doing so, as long as you’re reasonable and polite. “Say ‘I’ve made myself a promise that I’m not going to indemnify. I was wondering if you’d consider scratching this out,’” Motluk suggests. “… Often, people are okay with that.” She also recommends reminding editors why it’s unfair to require freelancers to take on so much liability — the publisher has enormous control over the story, and if they’re willing to publish it, they should be willing to stand behind it — and forward them literature explaining that.

Third party representation helps

A Vancouver-based freelance journalist, who asked not to be named for fear of reprisal from her clients, suggests taking advantage of your right to independent advice. “In all these boilerplate contracts, there’s always a line that says we acknowledge that you are allowed to have your own legal advice on this contract,” she says. “You want to say I’m a member of the [Canadian] Media Guild…and I’m going to have their staff representative take a look at the contract.”

It can be easier to then ask for contractual changes because the requests are coming from your union representative. “When you have a third party represent you, in essence, that makes you come across as maybe a little less aggressive,” she says.

CMG Freelance president Don Genova personally goes over any contracts a member wants him to look at. With over 20 years as a freelancer under his belt, he recognizes the ‘trouble spots’ in contracts, “which seem to be popping up in nearly every contract I look at these days,” he says. Genova also has access to the lawyers at Cavalluzzo, the Toronto legal firm CMG has on retainer for more specialized advice on contract language he hasn’t encountered in the past.

Sean Fitzpatrick of Cavalluzzo says, “There’s a potential for someone signing such a (indemnification) clause to be found liable, it would be better not to have it in your contract.” Fitzpatrick notes that in research performed by his firm, “we haven’t found any cases in Canada at all where the indemnity clauses you’re seeing have been referenced.”

Fitzpatrick also doesn’t think adding a freelancer to a publisher’s already existing liability coverage would add anything extra to their insurance. CMG Freelance is developing a template blanket contract that will be available on its website with language designed to protect freelancers from indemnity claims.

Many contracts require writers to warrant that their article includes nothing libelous or defamatory. Motluk suggests pushing to include the word “knowingly” or the phrase “to the best of my knowledge.”

“Then the whole issue would revolve around the knowledge of the freelancer,” says Giuseppina D’Agostino, an associate professor at Osgoode Hall Law School in Toronto. That’s much harder for the publication to prove before shifting liability and therefore offers the writer more protection.

But sometimes a publication just won’t budge. While The Walrus is happy to explain and clarify the terms of its contract to contributors, it won’t modify any terms, says executive editor Jessica Johnson.

There’s no rate that would offset the cost of a lawsuit

If that’s the case, you can turn the project down, which Motluk has done with a number of publications.

“It’s painful,” she says. “You hate it when it happens.” In one case, she says, “It was the best money I had been offered in a long time. It was a story I very much wanted to write for them. … [But] there’s no rate anyone could ever offer me that would offset the cost of a lawsuit.”

Alternatively, you can buy your own errors and omissions insurance. “We offer a really broad media liability coverage for freelance writers,” says Ana Bursack, media and entertainment underwriter at Beazley Canada in Toronto. All content the policyholder creates is protected against libel, slander and defamation suits, whether it’s published by a major news organization, on a personal blog or Twitter feed, or said on-air or during an interview. Journalists can buy coverage between $250,000 and $3 million, and their premiums — the annual fee paid to the insurer — depend on the work they do.

“A journalist, when submitting an application to Beazley, should be as clear as possible about the type of content he or she is writing, and provide a couple of samples,” Bursack says. “Someone who’s writing about … nature or wildlife is going to be a lot lower risk than someone who is working on criminal [investigations] or exposé pieces.”

When determining premiums, Beazley also considers the number of the journalist’s social media followers and their annual income, since both correlate with the likelihood people will read their work. It will also look at the amount of U.S. exposure the journalist’s work receives, since Americans are often more litigious. Beazley rarely declines to cover a journalist, but may do so if “we believe [they] are not taking a reasonable or prudent approach to risk management,” Bursack says. For example, one journalist’s application was declined because she was writing about child abuse, including her own experiences, and she wasn’t willing to take any legal advice.

Premiums can vary enormously. Claude Forest, an insurance broker at My Tuque in British Columbia, estimates an errors and omissions policy for an individual journalist costs $1,000 to $1,500 per year. But if hundreds of journalists were all interested in buying similar coverage, the price could drop significantly.

Publishers shunting responsibility

CMG’s Genova doesn’t like the idea of hundreds of journalists having to buy insurance just in order to sell their ideas.

“Media firms are trying to shunt their responsibility for what they approve for publication or broadcast onto the backs of freelancers. I’d like to see them provide the same protections for freelancers that they would for their own employees,” he says.

After all, says Genova, many contracts also demand copyright and moral rights from freelancers, which means publishers not only have the ownership of the work, but they also have the right to make changes to it without the freelancer’s approval.

“Those changes could possibly put the piece into contentious areas. Why should the freelancer be responsible for that?” said Genova. “You can’t have your cake and eat it, too.”

 

Click here to read part one of this series about the rise of indemnification clauses in freelance contracts.

Posted on September 13, 2018 at 10:08 pm by editor · · Tagged with: , , , ,

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