Understanding the landscape of the FIRE Guide

 

Why Evaluate Publishers and Broadcasters?
 

Summary

This era of increasingly aggressive defamation plaintiffs has laid bare a long established and under-appreciated fact: Journalism cannot serve the public interest without adequate media liability insurance (backed, as always, by careful story vetting).

Generally newsrooms promise the protection of their media insurance to staff reporters, but not to freelancers. The exclusion, which prevents crucial public-interest journalism from seeing the light of day, fully or at all, has become increasingly counterproductive.

Democracy’s ability to make informed decisions always relies on journalism, and, with every round of newsroom layoffs, increasingly on the freelance sector. Many freelancers cover specialty beats filling critical gaps left by decades of cuts in newsroom staffing, including investigative teams. This is not a good time to undermine freelance reporting.

When prudent freelance reporters can’t rule out bearing all the publisher’s costs to defend a claim or threat, they naturally face incentive to respond in one of three ways:

1. abandon the story entirely
2. avoid important lines of investigation
3. take on ill-advised and demoralizing risk (which in turn contributes to attrition)

All three responses run counter to the public interest at a sensitive time. All are a residue of antiquated liability procedures. All are avoidable. In unguarded moments any industry insider will acknowledge the obvious: Taking responsibility for freelancers and their stories is the only sensible course—if for no other reason than to never let the plaintiff divide your defense.

So why are outlets loath to take responsibility at the outset, making a fair promise to the freelancer? Because entertainment models are mistakenly imposed onto journalism, kept there by inertia, and reinforced by pointless attempts to “terrorize the writer”—an outdated approach to which the Guide shows an effective alternative and outlets modeling it.
 

Journalistic Context

While it’s no secret that journalism needs all the support and reform it can get, it’s less well understood how the field’s vulnerabilities relate to liability risk. The fraught nature of journalistic risk management has been increasingly critical to the public interest over the past two decades.

In the modern information economy, journalism has been operating on an uneven playing field: “Platforms” have a legal advantage over “newsrooms” precisely because platforms do not produce original reporting. By claiming to curate someone else’s untouched content, Huffington Post or Facebook have a way to evade legal exposure. It’s well known that the liability limitation, established early in the web era under federal legislation referred to as Section 230, has helped platforms divert eyeballs at the expense of journalism’s business model (and disseminate disruptive toxic disinformation).

But Section 230 has also skewed the landscape in a less visible way. Because newsrooms that produce or edit the original reporting (whether from staff or freelancers) are often not extended Section 230 protection and are thus more legally exposed than their curatorial competitors, their reporters and editors struggle to uphold public interest journalism’s mission to vet the story in search of truth. The web era, driven by imperviousness to such risk, has already left newsrooms reeling—and thus less resilient against defamation litigation to which the newsrooms are uniquely vulnerable.

This vulnerability is hardly lost on defamation plaintiffs, whose efforts to suppress unflattering or even revelatory stories have not abated. As always, the newsrooms fend off ruin for themselves—and darkness for the public—by proper vetting and good media insurance. These fortifications are a long-overlooked bedrock of public interest journalism. They are as strained as they’ve ever been—even as newsrooms are also strained.

For a variety of reasons, some choose to serve the public partly with freelancers. Just like staff reporters, freelancers need a promise of indemnification. Unlike staff reporters, they too often don’t get it. Too often the outlet

• withholds a promise to protect the reporter (or even demands that the reporter indemnify the outlet);
• makes a quasi-promise in one section of the contract that it effectively rescinds in another section—by extracting an unrealistic promise that even the most careful reporter could break.

The prospect of shouldering all the burden of legal liability, always heightened in investigative reporting, leads to harmful consequences at precisely the wrong time.
 

The Freelancer's View: Incentive and Consequences

Until freelance contract practices are brought in line with the public interest, valuable reporters face impossible decisions. When the words of the contract won’t let even a prudent reporter rule out bearing all the publisher’s costs to defend a claim or threat, the reporter will naturally respond in one of three ways:

1) Drop the story entirely as a sole proprietor

FIRE has repeatedly seen reporters read a contract, panic, and abandon the story; use valuable reporting time to shop it elsewhere; or simply avoid or abort the speculative pre-reporting needed to propose a story successfully.

2) Proceed but lay low

Some reporters can’t afford to forfeit a story fee, typically having invested heavily to earn the commission in the first place. They may feel compelled to take on the risk. But that naturally introduces the temptation to avoid exposure by forfeiting sensitive inquiries—an incentive that undermines journalism’s very mission, to “seek truth and report it, without fear or favor.”

3) Accept hostile terms and blindly take on the risk

Practically speaking, most freelancers who sign a horrible contract ignore the prudent course and report fully, at full risk to themselves, often wracked with anxiety over legal threats and expensive personal insurance. In FIRE’s experience, if the story ends up appearing, it does so at the cost of a horrible experience that encourages aversion to further investigative work.

The upshot is a loss of stories, and reporters—a public loss.
 

Disingenuity and the Written Promise

These problems are avoidable. At their heart is a disingenuousness about liability. The salient fact is that outlets will ultimately take responsibility for a freelancer’s reported story, if they’re smart, a fact that some lawyers and risk managers will readily concede in private. They just won’t commit to do so in writing, at the time of commission.

Savvy editors often orally assure freelancers of coverage: Forget the words on the page; in a pinch we actually have your back. But such spoken assurance is often neither reliable nor justifiable. Words on the page matter, psychologically but also legally. That is especially true in the case of larger media owners like Penske, Hearst, or Conde Nast, charged with seeking the lowest possible cost and maximum shareholder return. New leadership, a new investor, a simple fit of caprice and there’s nothing to stop corporate headquarters from enforcing the liability limitations codified in the company’s contracts, as seen in a notorious Forbes case.

For all practical purposes, “trust me” may be a false assurance that contradicts the very spirit of accountability journalism—fairness, transparency, and verification. But it’s also a pointless approach. There’s simply no upside to isolating a freelancer, or letting the written words keep that option open. Failing to protect any freelancer sued alongside the outlet would leave the freelancer with exactly the wrong incentive: to accept the offer of any plaintiff to “turn on” the outlet, in exchange for dropping the claims against them personally. Most freelancers don’t know or think about this incentive. But anyone in authority at a media company almost certainly does. This knowledge drives much of the disingenuity.

In practice, journalism and risk management operate according to a little-known fact: The publisher actually does not choose whether or not to protect a freelancer, only whether to promise to do so. It is their liability policy or insurance company that decides. Some policies allow the insurance carrier to explicitly reject coverage for a freelancer. But even in those cases, they will seldom do so: An outlet’s insurer almost never wants its client to contractually exclude freelancers. Media insurance expert Chad Milton, who has probably insured more First Amendment defamation defenses than anybody alive and is the nation’s leading authority on journalistic risk, has never seen an insurance carrier condone a publisher’s suggestion to isolate, expose, or externalize a freelancer in navigating a defamation threat or complaint.

“At the end, when there’s a claim, if you’re defending the publisher, the insurance company wants to defend the freelancer,” he said. “The last thing you want is an uninsured freelancer going rogue (engaging the plaintiff or settling).” Since virtually any media policy extends to independent contractors, or can be made to do so in advance, smart outlets know that it’s pointless not to cover freelancers, which their insurance carriers will see as an unalloyed benefit. “It’s no added cost. It just happens,” said Milton. “In the end, the publisher is always going to defend the freelancer.” Or almost always.

So why create the anxiety? If your insurance is going to indemnify a responsible reporter anyway, along with the company, why not just do the right thing and promise protection in writing, as five of the 20 outlets evaluated here do already, modeling the way for the field?
 

Anatomy of a Flaw

The answer—the reason that the Guide’s “Yellow” and “Red” outlets jeopardize freelance reporting and the public interest—involves three interrelated factors, all unacceptable, all tractable with a little attention and exposure:

1) Mistaking journalism for entertainment

Journalism executives and lawyers often come from the entertainment and tech worlds, where institutions receive indemnity from the source of their content—HBO gets it from documentary film producers; music producers get it from song writers; and Huffington Post, from its contributors.

That doesn’t work for freelance journalism:

1. Reporters are not “content creators.” They do the same work as staff reporters, under the same guidance, influence, and control: If anything, they are “evidence co-vetters.”
2. Freelancers are typically undercapitalized—with maybe enough money to do the story (too often out of pocket, on inadequate fees), but not enough to afford their own insurance premiums or deductibles—let alone a $1 million defense.

2) Institutional inertia

Milton puts it bluntly: “The larger organizations with entrenched risk management and legal departments just don't seem willing to make an exception to the protocol for freelancers.” In a relatively insular environment they simply adopt a rote approach, reinforcing it with each contract. “Publishers get indemnity from freelancers,” Milton says, “It’s just what you do.”

3) Misguided scare tactic

Compounding the inertia, Milton says, is a misguided cynicism. Multiple media attorneys who defend outlets from defamation lawsuits have privately confessed that they also impose liability in freelance contracts “to terrorize the writer,” he said, “to make sure the writer is careful.” It’s a counterproductive approach, Milton points out, because offloading liability onto a freelancer will not reduce the chance of litigation or affect its outcome. As elaborated below, such risk is minimized only by proper vetting of a reporter and story: Any use of contractual language toward that end, as a scare tactic, naturally creates a fear of pursuing lines of investigative inquiry, among other problems.

Who wants that? Who benefits? What's the upside to shocking a conscientious reporter into worrying about losing their life savings? If that person is worth commissioning, they are already terrified of getting it wrong. The conceit of scaring a reporter into conscientiousness, Milton says, “is not the way insurers want publishers to interact with freelancers.” It’s for this reason that employment contracts explicitly protect staff reporters, who deserve equivalent protection if they become freelancers. Otherwise, the exposure has the same chilling effect—at the same peril to the public interest—as it would have on staff. The reporting process and outcomes must be protected in both cases, if democracy is to thrive.

Reducing Liability Responsibly

In dealing with freelancers, as with staff, a publisher or broadcaster can reliably reduce its liability only by choosing reporters carefully. No publisher or broadcaster should commission a freelancer who is insufficiently thorough, fair, and careful, in the outlet’s sole discretion. Rigorous selection in the commissioning process protects against reckless reporters. A contract that simply shifts the burden to the reporter cannot do that—it won’t lessen the likelihood that the reporter is irresponsible, or that a story would precipitate defamation litigation. It’s ineffective and damaging if used for that purpose.

An effective contract is one that protects the reporter—in exchange for adherence to the professional standards of the outlet. Sparing the reporter unnecessary anxiety from exposure to defamation also spares them any incentive to avoid critical inquiries (even if reported responsibly and carefully). A protective contract frees the reporter to most fully seek the truth, which best informs the public. That is the standard to which FIRE’s Guide holds all outlets, via transparent vetting and disclosures—so that others may do the same, encouraging stronger protections in the public interest.