Choosing insurance to protect freelancers
In relation to independent contractors (e.g., freelance reporters), a publisher or broadcaster will have one of three distinct types of media-insurance policies, although some policies may combine elements of them. The policies differ in how easily a policy-holder can add freelancers.
The policy would include language like the following:
“The Insured Entity and: any natural person independent contractor of the Insured Entity, but solely with respect to an Occurrence committed within the scope of such individual’s duties on behalf of the Insured Entity;”
2) Publisher’s Discretion (not best, but still "FIRE-approved") lets an outlet designate that a freelancer will be covered, but does not always specify how the outlet must make that designation (e.g., by written contract). In practice, a mention in the freelancer contract suffices. So if the publisher is covered for a story, so is the designated freelancer who worked on it—as long as their contract specifies that they are so covered. The policy would include language like the following:
“at the sole discretion of the Named Insured, which may be designated before or after any Event or Claim, any agent, representative ….or independent contractor of the Insured….but only with respect to Material or services provided by such individual or entity for Covered Media;”
But the third approach presents a different and riskier situation, in two different forms.
3a) Post-claim (not FIRE-approved): In this approach, the publisher’s decision whether to add a freelancer to the policy comes only after a claim—and requires insurance company consent. That’s a problem. If the publisher has this sort of policy, they will be unable to promise coverage at the time they negotiate the freelancer contract. The policy would include language like the following:
“any natural person or entity (C) that is an agent or independent contractor of the Insured Organization…, but only with respect to Claims arising out of Media Activities done for or at the direction of the Insured Organization, and only if and to the extent that the Insured Organization, after evaluating the merits of the Claim:
3b) Policy silence (no good either): The publisher’s policy may have no provision for extending coverage to freelancers.
On their own, these types of insurance do not meet FIRE standards.
But in both versions, these policies do allow the outlet to request coverage for the freelancer in advance through a type of paperwork called an Additional Insured Endorsement (which Blanket and Publisher’s Discretion would not require). An Endorsement, which would explicitly name the freelancer as covered for material and services provided, could be worked out at the time of commission (again, without an Endorsement there’s no way to guarantee until a claim is filed).
If the freelancer knows that an outlet’s policy would require an Endorsement to secure her protection, she could request that her contract promise the Endorsement—or simply request a copy of the Endorsement itself. The outlet’s representative should be able to say whether the company’s policy requires an Endorsement. But if there’s any doubt, you could ask—or request a copy of the outlet’s policy to find out. FIRE has consultants who can decipher any policy. With Endorsements, these types of insurance would meet FIRE standards.
Note: In some policies, the Endorsement might expire when the publisher’s policy comes up for annual renewal, so the freelancer might explicitly request that the outlet include the endorsement on the subsequent year’s policy, too, in case the story wouldn’t be published until then.
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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