The Smart Move of Protecting Freelancers
Why publishers and broadcasters should
legally protect investigative freelancers
By Mother Jones Chief Executive Officer Monika Bauerlein; and
Freelance Investigative Reporters and Editors (FIRE) director Laird Townsend
Publishers and broadcasters can actually protect freelancers from liability in sensitive investigations—and the smart ones do, for these reasons.
♦ There’s no downside to protecting a freelancer
- It doesn’t cost anything: Most media insurance automatically includes independent contractors or let outlets choose to cover them.
- It’s safer not only for the freelancer, but for the publisher.
♦ It’s the right thing to do
- Any outlet that has vetted an investigative story—and theoretically would benefit or receive an award for it—should take responsibility for the journalism and the journalist.
- Indemnifying the reporter encourages reporting in the public interest. When an outlet refuses to protect them from liability, freelancers must take harbor in “safer” stories.
- In return for committing to defend freelancers against defamation and newsgathering-related claims, outlets can expect (and demand in writing) a commitment to conduct rigorous, fair reporting; and to cooperate with factchecking, editing, and legal defense.
♦ It’s sensible business strategy
- Refusing to protect freelancers is not going to stop a lawsuit
- Plaintiffs don’t care that there’s an indemnity clause distancing the media company from the freelancers by offloading exposure onto them. They may well sue the outlet anyway.
- Libel plaintiffs no longer litigate just to set the record straight. Now it’s often legal warfare against the media—not to win, but to inflict pain.
- Or even just to brag that they’re doing it—which can play well with certain constituencies. They’ll be motivated to sue both reporter and outlet.
- Circulation matters; reputation matters
- Media diversification has fostered furious competition for readers’ attention. Investigative stories serving the public interest are among the most highly trafficked.
- With newsroom cuts, investigative freelancers are an increasingly important asset.
- Word travels. If your outlet becomes known for throwing reporters under the bus, the best reporters will stay away.
♦ Full protection is the smart legal strategy
- Indemnity clauses are actually risky for legal defense.
- A reporter who is not included in the outlet’s defense may be incentivized to communicate separately with the plaintiff or negotiate a separate settlement.
- Plaintiffs have occasionally tried to peel the reporter away from the publisher, offering to drop the case against them in return for “helpful” information to be used against the publisher.
- Smart publishers or broadcasters realize that they want freelancers on the team, and not a potential liability in litigation.
♦ A fair policy is doable—and sustainable
- If you expose freelancers to liabilities and burden them with their own defense, you are unnecessarily alienating your most important asset.
- Committing to legal defense upfront, in exchange for the freelancer’s promise to uphold journalistic standards and participate in any legal defense, is not difficult. It can be easily reflected in a contract. And it’s right at every level.
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.
FIRE Tip Sheets are meant to open a dialogue in the public interest. To help us improve them, please email firstname.lastname@example.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