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FIRE Tip Sheets convey expert guidance to help media outlets and freelance reporters arrange viable contracts for public-interest investigations.  An annotated list of the complete FIRE Tip Sheets appears here.


Red light, green light

Reading a contract’s liability terms 

No reporter should have to mortgage their house to do a public-interest investigation. Certain liability provisions amount to red or yellow traffic light signals. But there is a way they can turn green, as in the following recent FIRE cases, in which FIRE attorneys suggested viable counter-language for the mutual promises. 

Case 1 Red light—don’t sign:  

Outlet promise/requestWriter will indemnify and hold the [Outlet] harmless for any claims, matters, complaints, liabilities, and actions arising out of…” 

Yikes, actually, worse than no promise at all—on the contrary, a notorious “Publisher’s Indemnity clause” by which the reporter must protect the publication, go on the hook for any legal costs, and fend for herself if sued

Reporter asked to promise“that the Article is accurate; that the Article will not be libelous”  

No better, see below. But a "no-go" in any case, with an indemnity clause like that.

Green light: Now we’re getting somewhere. 

Outlet’s new promise[The Outlet] will indemnify and defend you, up to the available limits of its applicable insurance, against any third-party claim arising out of…” 

This is a more clear and direct promise to protect the freelancer. 

Reporter’s new promise“that the Article is to the best of your ability factually accurate; that the Article will not be defamatory by way of knowing falsity.” 

Also far better—precise and realistic, per below. 

Case 2 Caution—don’t sign:  

Outlet promise/request“In the event of any legal action arising out of publication of the article, the [Outlet] will indemnify, defend, and hold the freelancer harmless from all claims, damages or losses other than claims, damages or losses arising from breach.” 

Sounds good. Protect the freelancer—but with a major “catch” in the phrase “arising from breach,” referring elsewhere in the contract. The “breach” has to be defined, as below.  

Freelancer asked to promise[The work is not] libelous nor an invasion of anyone’s privacy” 

This language is too vague: it's essentially asking the reporter to promise that nobody will file a lawsuit. Only the courts determine if a story was “libelous.” And in the unlikely event that it got that far—and certainly if it doesn’t, for example if a lawsuit is threatened, requiring an attorney response—the company could use the vagueness to claim that the lawsuit (or threat) constituted a breach. That could expose the reporter to the legal expenses. Yellow—turning red. 

Green light: Now we’re getting somewhere.

Outlet’s promise—same (per above) 

Reporter’s new promise“[that the story is not] knowingly false and defamatory” 

Precise and realistic—safe to sign. In this way, the only time the publisher would not cover the reporter is if it determined that the story was not just in error or incorrect but made that way intentionally by the reporter. 

     


About the FIRE Tip Sheets

FIRE Tip Sheets highlight some of the key questions raised at a 2021 FIRE panel on freelancer liability. Future guides will address intellectual property, pay rates, and other key issues for freelancers. An annotated list of the complete FIRE Tip Sheets appears here

FIRE Tip Sheets are made available for educational and informational purposes only: They are not legal advice. FIRE makes no representation or warranty for any particular fitness of purpose and is not responsible for the effect of any reliance upon FIRE Tip Sheets or other information provided by FIRE. 

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FIRE Tip Sheets are meant to open a dialogue in the public interest. To help us improve them, please email info@firenewsroom.org, subject line "Tip Sheet feedback." To query or clarify any element of Tip Sheet for use in freelance investigative reporting, please follow instructions at Legal Consultancy.


FIRE Tip Sheets are made possible by support from Craig Newmark Philanthropies.

© Freelance Investigative Reporters and Editors, 2022