#1: The case for public-interest journalism
When publishers or broadcasters ask a freelance reporter to take on liability for a commissioned investigation, they may be making a good-faith effort to protect their institutions. Offloading liability onto the reporter may sound like a generically smart move: Who doesn’t want to limit liability?
It’s not as smart as it sounds. If you commission a story, it does not matter that you burden an independent contractor with liability for the story—doing so hardly spares you the consequences of a defamation lawsuit. On closer inspection, the smart move—indirectly far more protective in the end—is to take full responsibility for a story, accepting the potential legal consequences for it.
By accepting such exposure for stories that you commission, you are accepting the need for rigorous fairness and accuracy that may help defend against legal action, or forestall it entirely: Unconsciously or consciously, you may have more incentive to take an intimate, hands-on approach by all available means—editing, fact-checking, and pre-publication legal review.
That kind of due diligence can only make a story safer. At the same time, you are obviously compelled to choose a reporter who pays the same kind of attention to detail, ethics, and accuracy. To be indemnified for a contribution, any freelance journalist must pledge to uphold a basic judicial standard: never purposefully avoid the truth or commit knowing falsity (commonly known as actual malice)—at pain of breaching and losing liability protection.
The most highly regarded outlets know this. They know not to commission a freelance story unless they trust the reporting—and the ability of the reporter to uphold a professional vow. But they also know: If the trust is there, you should indemnify the reporter accordingly, requiring only a fair, realistic promise not to violate the “actual-malice” standard.
Doing so encourages reporting in the public interest—the right thing to do. Your outlet would have to vet an investigative story, it would theoretically benefit from the story, it could receive an award for the story, and so it should take responsibility for the story. It's actually that simple.
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 email@example.com, 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.
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