Behind FIRE's evaluations on defamation exposure

The pilot FIRE Guide to Freelancer Protection evaluates whether 20 publishers and broadcasters promise to protect freelance reporters against defamation liability, using the evidence-based research and color ratings described below.
 

Evidence and Methods

The FIRE Guide is designed to hold any publisher or broadcaster to the same standard as its peers, allowing each to meet the FIRE criteria if it chooses to. 

The pilot Guide primarily relies on three years of accumulated data from FIRE's Legal Consultancies, consisting of three main sources:  

• documents derived from FIRE’s experience facilitating stories with particular outlets  

• responses to a standard questionnaire that FIRE submits to outlets 

• documentation and intelligence contributed privately and confidentially by freelance reporters.  

To vet the intelligence for fairness and accuracy, FIRE uses standard reporting methods, including vetting of sources, exculpatory questions for outlets, and opportunities for comment involving a minimum of ten days and three emails. The evaluation will be updated frequently to reflect changes in an outlet's liability practices, particularly improvements.
 

Caveats for Pilot Guide

• For the pilot Guide, FIRE makes no claim that its evaluations are:
  • up to date (we include "as-of" dates)
  • based on statistically meaningful sample size (the sample size will grow as participants join)
  • comprehensive (we don't evaluate fees, Intellectual Property, or even the quality of an outlet's editing and lawyering)
• To emphasize: The colors should not influence a freelancer's decision whether to contract with an outlet—only whether to do so if their sole criterion is an up-front written promise of protection.
• Outlets that do wrong by the freelancer contractually, may do right by the story editorially.
   

Color Criteria

With those caveats, the pilot FIRE Guide to Freelancer Protection evaluates outlets on the following color-based criteria, based on whether the outlet makes a written promise to protect freelancers from defamation:

Green

FIRE-approved: protects freelance investigative reporting

Promises protection at time of commission and is set up to deliver it

• Contract explicitly promises indemnification on a safe and realistic Reporter "warranty" (promise)
• May also have
  • known media insurance favorable to independent contractors
  • demonstrated history of protecting freelance reporters in face of defamation lawsuits (threatened or actual)

 

Yellow

Not FIRE-approved: proceed at your own risk

Default unprotective, but makes exceptions, has mitigating factors

• Does **not** promise indemnification as above, by default, but may have mitigating plusses:
  • Condones or encourages freelancer's request for written promises
  • Negotiates with some reporters to codify promise of indemnification
    (in writing; oral-only promises do not qualify)
  • Has media insurance favorable to independent contractors
  • Has legal team with demonstrated history of protecting freelance reporters in face of defamation lawsuits (threatened or actual)
• Yellow closer to Green—more of the positive qualities above
• Yellow closer to Red—less of the positive qualities above

 

Red

Not FIRE-approved

Not there yet—unprotective boilerplate and unwillingness to modify

• Does **not** promise indemnification and has none of the above mitigating qualities
• Demands that reporter unconditionally indemnify outlet for legal trouble arising out of the piece
• Additional minuses may include:
  • Asks or advises that reporter accept oral-only promises
  • Asks reporter to forego written promise as a sign of trust