Making a safe contractual promise
“Then, is there any kind of “go to” phrase that we can use to propose for striking and replacing garbage indemnification clauses?"
If a publisher or broadcaster does not trust you to execute, then they shouldn’t contract you. But if they trust you and want your story, there is no reason not to promise to protect you.
Their vow of protection, technically known as "warranty" and/or "representation" would show up contractually in two places:
- what a reporter promises
- what the outlet promises
What the outlet promises can matter for the rest of your life. Anecdotally, an increasing portion of lawsuits are not filed to correct the record—but simply to attack the messenger. Legal actions happen.
At the same time, your own promise can matter too, because if you break it, the outlet may owe you nothing. Sometimes boilerplate language asks you to pledge that the story won’t contain anything “libelous” or “defamatory.”
But that kind of warranty is too vague. It allows the outlet to claim that the mere existence of a lawsuit constitutes a breach, exposing you to legal costs: In other words, you are in jeopardy not because you breached the promises you made, but simply because there was a claim that you did so—the allegation of libel or defamation. It shifts all the risk to you.
Such imprecision may not impact you until much later, because normally the outlet would pay until there is a judicial determination. But then the whole legal bill could come due, even if a finding of libel didn’t include any wrongdoing on your part.
The same problem happens if there is no determination at all: Let’s say a party merely threatens a lawsuit, forcing the publisher to pay an attorney to respond. In that case, an insufficiently precise contract could enable the outlet to demand reimbursement from the reporter in the end. To continue serving the public as a reporter, don’t risk vague promises.
Instead, promise
- not to "plagiarize," not to include anything "knowingly false,"
- not to act with "reckless disregard" or "knowing falsity."
Such promises conform with the long-established judicial standard of “actual malice”—you'd be upholding professional and ethical standards, as outlined in the published FIRE Contract Template:
“Reporter will gather news and draft the story working under the highest possible ethical standards as detailed in the Associated Press Stylebook and the Code of Ethics of the Society of Professional Journalists.”
Those are vows that any reporter must be prepared to make. In exchange, the go-to request would be liability protection from the outlet, also known as indemnification.