So why don’t outlets indemnify freelancers?
“Monika [Bauerlein, Mother Jones CEO] says it doesn’t cost them to cover the freelancer, so then why would a publisher choose to NOT do that?”
Accountability journalism is a risky business. Experienced editors know that original investigations pose specific legal challenges, precisely because they are original: They don’t draw on prior publications’ work. In legal parlance they are “first mover” stories, which means that legal defenses invoking plausible distance or lack of involvement—sometimes known as the “wire service defense” or “neutral reportage” defenses—don’t apply to them.
But more to the point: Investigations usually reveal something that someone’s trying to hide, making them naturally subject to libel lawsuits. And even if a lawsuit doesn’t go that far, it can trigger stark economic consequences.
If the company’s own media insurance puts it on the hook for the first $50,000 deductible in the event of even a baseless intimidation lawsuit, its general counsel may understandably pause and ask—so how badly do we want this story?
If the answer is badly enough (e.g., from an editor’s lobbying), then there is absolutely no reason not to indemnify the reporter—and every reason to do so. As explained elsewhere, indemnifying the freelancer doesn’t increase the cost to an outlet—and it’s smart for numerous reasons.
But there will always be temptation to avoid the smart approach. According to media insurance expert Chad Milton, some outlets think they should withhold liability protection to scare freelancers into exercising caution. This doesn’t help anybody:
- a freelancer who didn’t care about risk and would recklessly sign on anyway, should not be contracted. Period.
- careful experienced freelancers don’t need the scare tactic and would simply forfeit the story and walk.
- well-intentioned freelancers financially desperate enough to take on the exposure would understandably become anxious enough to abort important lines of questioning.
No freelancer should proceed without protection. No freelancer should be asked to do so. And if any outlet thinks they can pay less attention to a story by not indemnifying its reporter, they’re not thinking clearly.
According to FIRE's media attorneys, in-house lawyers at media companies have sometimes misinformed their publishers about the scope of the so-called "Section 230" immunity, whereby publishers might claim to have no liability for something written by a freelancer.
This is wrong, in the view of FIRE's lawyers. The defense may work for the case of an Op/Ed contribution or product review submitted to the outlet and untouched by the outlet's editors prior to publication. It cannot be expected to work for investigative journalism.
Outlets that assign an editor to work with the reporter, provide substantive edits and suggestions, and guide the reporter to the finish line—those outlets are still on the hook for the resulting publication. Offloading liability to an independent contractor does not reduce their liability. Nor should it be considered a viable option for other reasons.
More broadly, there's also a generic mercenary mindset, in which any time a publisher or broadcaster can shift liability to a contractor, it might default to doing so.
This approach—fully claiming and vetting a freelance story but trying to externalize the exposure for it—more often than not represents a losing proposition for the outlet, as outlined elsewhere. But it still happens—often due to simple cultural conditioning. The people who make those decisions are products of their backgrounds.
In the media and entertainment world, which overlaps enough with the journalism world to share some relevant personnel, the cultural default is to offload exposure—period. That may make little sense in contracting investigative freelancers, but any risk manager or general counsel steeped in that legacy may be slow to see the difference. Old checklists die hard.
Some lawyers bring otherwise exemplay skills and experience to media companies, but may also
- have never worked as journalists
- lack newsroom experience
- have little training in thinking like journalists.
Media executives and their counsels, especially those coming from entertainment and other industries, may have traditionally worked so narrowly to limit corporate liability—the prime criterion in those industries—that they simply fail to adequately balance it against journalistic value—at least in the case of independent contractors.
Instead, they may impose risks onto an external party almost habitually, regardless of any journalism-hostile and public-hostile results. It’s no coincidence that most publications and broadcasters known publicly for their award-winning reporters and editors are known privately for the journalism-championing executives and counsel—and for the same reason in many cases, for their effective treatment of freelancers.
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