#3 Teamwork: the smart legal strategy
There is no evidence that promising to cover an independent contractor under an outlet’s media insurance would somehow hamper any defense against any legal action on any grounds. According to lawyers, this is even true of a “Section 230” defense commonly used by lightly curated websites (We’re merely an internet platform, we don’t touch the stories).
If anything, including the freelancer simplifies and strengthens the defense. Any First Amendment-friendly general counsel will privately acknowledge that a publishing or broadcasting company will benefit most when it fully protects a freelancer for a commissioned investigation against any legal action.
If nothing else, having the reporter securely embedded within the outlet’s legal team reduces the incentive for the reporter to communicate separately with the plaintiff and negotiate a separate settlement. Why enable parties on the same side to sue each other or interfere with each other's legal defense?
Libel plaintiffs, usually well-heeled companies or controversial persons, tend to sue the publication for the money, and the reporter for the chilling effect such suits have. Any newsroom lawyer or editor who has dealt with a libel suit will tell you how crucial the cooperation of the reporter is to the publisher’s legal defense.
As a matter of litigation, alienating the reporter by refusing to cover them legally is a risky proposition: faced with losing their car, house or other assets, a reporter may very well be tempted to take up the plaintiff’s offer to be dropped from the case in return for cooperation in their suit against the publisher.
According to media attorneys and media-claims experts, plaintiffs occasionally try to peel the reporter away from the publisher, offering to drop the case against them in return for “helpful” testimony and information. It has also worked the other way, according to the experts: A reporter feeling exposed has occasionally approached the plaintiff.
Indeed, this is one reason why an outlet's own insurer will routinely recommend covering the freelancer—and why the outlet almost always follows the insurer’s advice in the event of a lawsuit.
The only question is whether to explicitly offer protection, in writing, up front, so that the reporter, as a sole proprietor, can justify the business decision of producing the story to the fullest, developing the reporting with confidence, fearlessly tracking down leads and evidence for rigorous vetting. When that's done, it’s good mutual business strategy, with the public benefitting in the bargain.
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.
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