Signer beware: Libel clauses in some freelance contracts leave writers holding the bag

Clauses that make writers wholly responsible for defamatory language in magazine articles have been popping up in freelance contracts for a while now. Last fall, we mentioned that The Grid, owned by Torstar Corp., was distributing new freelance agreements with clauses that could leave writers exposed to counter-suits in the event a libel suit was filed against the publisher in relation to their work. The Canadian Writers Group and the Canadian Media Guild expressed concern because writers were being asked to shoulder the full legal and financial responsibility when it came to potential libel claims. Similar clauses have appeared in past contracts for Rogers Publishing and Reader’s Digest, but were amended once concerns had been expressed by CWG.

In each of those cases, acknowledging that writers are often not experts in libel law, the publishers modified the clauses, adding language like “knowingly defame,” “intentionally defame,” or “to the best of his or her knowledge defame” so that the writer is protected from the charge that they intentionally or knowingly inserted libelous language into their articles and shifting most responsibility to the publisher.

Recently, another similar clause in a Master Author Agreement from Canada Wide Media Ltd. — publisher of Alberta Home, BC Business, and Real Golf, among other titles — was brought to our attention. It asks the writer to “confirm” that “the Work will not constitute defamation, invasion of privacy or appropriation of personality.” The contract, which also gives Canada Wide the right to make changes to an article without the writer’s permission, makes the writer responsible for “The Work,” which could also conceivably include edits made without the writer’s knowledge.

We asked Canada Wide Media’s vice-president of Editorial, Kathleen Freimond, if she was aware of any writers expressing concern over the clause and, if so, does Canada Wide intend to amend it.

“One writer’s agent has expressed concern over this clause. Our response is that we will discuss this with our lawyer and we plan to do so,” she replied by email. “It is not the company’s intention to disadvantage writers and indeed we pride ourselves on our exemplary relationship with writers, photographers and illustrators.”

We hope that discussion leads to a clause that offers more protection to freelancers, but in the meantime, if you’re a writer who has received a contract with such a clause — from Canada Wide or anyone else — make sure you know what you’re getting into before you sign, and ask yourself if one magazine article is worth risking all your assets for.

You can amend the clause, or ask the publisher to amend it, to use wording that says you will not “knowingly” include anything defamatory. Or, if you decide to go ahead and sign it, you should also take these steps:

  • Send the editor an email that 1) states you did not study libel law and that your understanding of what constitutes libel is by no means that of an expert and 2) asks the publication to acknowledge that in the context of what they’re asking you to confirm/warrant. Keep this email and any replies in your files/archive.
  • Request in writing to see the final, pre-press version of the story in question in layout form because, according to the clause, you are responsible for any changes they make.

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