This update has a very dramatic headline – because a number of publishers are introducing some very dramatic Indemnity and Liability clauses into their writer’s contracts.
Traditionally, publishers have assumed liability for anything they produce. Their major risks are defamation and copyright infringement, and publishers usually pay hefty insurance premiums to protect themselves in the event of such claims.
Publishers also carry a good cover for public liability insurance, in case someone trips on their stairs or burns themselves on their coffee-pot, for example.
There’s a trend for companies and government outfits who hire contractors to require public liability cover, and plenty of publishers now require their freelance journalists to show evidence of public liability insurance (which is a bit nonsensical!)
But more insidious is another trend where some publishers are attempting to transfer all legal liability – including liability for any legal costs – to their writers. This could mean that if a letter is written to a publisher by a potential claimant about an article written by a freelancer, even if that letter lacks any basis, the cost of a lawyer writing a response would, in theory, be charged to the freelancer.
Many writer’s contracts require journalists to make certain warranties. These often include the very reasonable confirmation that the work supplied by the writer is their original work and does not breach the copyright of another party. Some contracts ask for a warranty that any opinions expressed by the writer are honestly held – again, a reasonable request.
These are warranties that most writers are happy to make. Contracts become problematic though, if they don’t include a clause where the publisher also assumes liability for anything published (usually with a provision that the writer has not breached their warranties.)
Another warranty request that is more problematic, though, is the requirement that the writer warrants that they have not knowingly defamed another party or included anything that is not factual.
It’s important that the word ‘knowingly’ or ‘intentionally’ is used in that warranty. It is actually quite easy to unintentionally defame someone, simply by quoting another person’s defamatory statement.
In the publishing process, sub-editors often change or remove material, context and attribution can be altered and headlines and additional text added – all acts beyond the control of the writer.
For this reason, it’s vital that publishers also indemnify the writer against any legal claim. If this clause is not included in a writer’s contract, the publisher may be attempting to transfer all liability to the contributor. This is not only harsh, it’s also something over which a journalist could potentially lose all their assets.
There are a number of cases in recent Australian legal history where a journalist has been sued personally. Insurance underwriters will simply not cover a writer who does not have the indemnity of their publisher because the writer simply does not have control over the final output.
Legally, anyone deemed “responsible” for the publication of defamatory or otherwise contentious material is liable, so that can include the writer, the editors and / or the publisher. But if you sign a contract where you indemnify the publisher against any legal action, you may well wear the brunt of a claim – and it’s quite possible you may have to sell any assets you own, including your family home, to meet a legal action.
One freelancer who writes about gardening has now informed their publishers that, as they have been unable to find indemnity insurance of the scope required, they will now cease making product and material recommendations. This freelancer stated:
“Melodramatic as it may sound, I feel this step is necessary as once large corporates know that freelancers are standing alone on liability, they can simply hit us with vexatious suits to shut us up if we talk about products or practices that they don’t want us talking about as they know we can’t fight back.”
This is not a great outcome for journalism in general.