Indemnity clauses – the rickety bridges of freelancing

by Lesley Evans Ogden

Imagine you want to climb up a mountain to a beautiful viewpoint. You’ve done some research, figured out how to get to the trailhead, packed your backpack, and climbed most of the way up the mountain.

But on the final ascent you arrive at a deep chasm. The only way across is a rickety bridge. The viewpoint is otherwise inaccessible, and it’s too wide a gap to jump. You’ve invested so much time and effort in getting here. It seems silly to quit now.

So what do you do? Do you throw your pack across the gap and gingerly make your way across the bridge? Or do you run across the bridge as fast as you can, hoping that in haste, you won’t exert your full weight on the dubious infrastructure?

This dilemma, to me, is a lot like how freelancers approach new clients. We are goggle-eyed by the possibility of a new byline or credit. We’ve found a good story. We’ve located the trailhead – the contact details for the editor or producer. We’ve packed our backpack and made progress up the path by successfully researching and pitching the story. Yet we’ve invested all this time without knowing there is a rickety bridge — an unfavourable contract — to cross at the summit.

This recently happened to me. About a year ago, an editor at The Walrus contacted me, complimenting me on a story I had written for Nature. The Walrus editor encouraged me to pitch them a story. The embarrassing truth is that it’s hard not to be flattered by these kinds of out-of-the-blue solicitations for pitches. So I did pitch them. My first pitch failed, so I pitched them two more times. My third pitch was successful, and I was excited to have broken new ground.

We agreed on an approach, a deadline, and a word length, and I already knew their pay rate. What I hadn’t yet seen was their contract. As it turned out, the contract included an indemnity clause that placed a high level of risk onto the freelance writer. It said (emphasis added):.

1. The Writer represents and warrants that:

a. the Writer is the sole author of the Work, and the Work is original and has not been previously published in any form;

b. the Writer has full rights to enter into this agreement and is not in breach of any other agreement or relationship in relation to the Work;

c. the Work does not infringe copyright or any other proprietary right;

d. the Work contains nothing libelous [i] or in violation of any right of confidentiality or privacy; and

e. the facts contained in the Work are based on reasonable research to establish accuracy.

1.2       The Writer agrees to indemnify and hold harmless [ii] the Publisher from any claim or losses arising from a breach of these representations and warranties.

And later, it said:

3. Legal Claims

3.1       The Writer must alert the Publisher [iii] to any circumstances regarding a story that could present legal risks to the Publisher.

3.2       If the Writer receives notice that a legal claim could be, or has been, brought over the Work, the Writer will immediately advise the Publisher, and whether or not named as a party, the Writer will co-operate fully in assessing the claim and defending or settling the claim, as may be determined by the Publisher.

3.3       Where insurance coverage is available for the claim, the Publisher will make best efforts [iv] to include the Writer in the coverage, and in any event, the Writer will co-operate fully in defending or settling the claim as may be required under such coverage.

These contract clauses didn’t just set off alarm bells in my head. The bells were ringing at a volume of 11. In order to sleep well at night, knowing my family’s personal assets were not potentially at risk, I simply could not sign this contract.

Let me break down my reasoning for you.

First, 1d, that the Work contains nothing libelous.

This is a problematic statement because though a freelancer can make every effort to ensure the work contains nothing libelous, “the laws governing issues such as trade secrets and libel – writing something false about someone that damages his or her reputation – can vary from state to state and country to country,” explains Mark Schrope in the Science Writer’s Handbook. What that means, he adds, is that “The global reach of the Internet means you could be sued over your article in a country you’ve never even visited.”

The second red flag is the statement that you will “indemnify and hold harmless,” whatever entity you are writing or producing for. By agreeing to this you could be putting yourself on the hook for complete financial ruin if someone gets their knickers in a knot over something you’ve said in your story. What you’re saying here is that you are taking on the entire legal responsibility for the content of your writing, and the entire financial responsibility for defending that content in a court of law, if necessary. In a fair contractual arrangement, your publisher should be fact checking and standing behind your work – your work is published with their brand attached to it, after all, and they are profiting from your work.

The third red flag: “Where insurance coverage is available.” What does that even mean? Surely you either have coverage that includes your writers, including freelancers, or you don’t? As to what are “best efforts” to include the Writer in the coverage? It seems obvious, to me at least, that a best possible effort would absolutely include writers in the insurance coverage.

All of these various clauses in The Walrus contract added up to some of the most ambiguous, baffling and unfavourable contract language I had ever seen.

Of course it’s not unreasonable for publications or broadcasters to expect freelancers to be professionals by avoiding plagiarism, making sure the information conveyed is factually bullet-proof, and creating content that does not intentionally injure, defame, libel, violate patent, or invade privacy.

But the important thing to consider before signing a contract is that defamation law is complex. Libel lawsuits against freelancers are rare, but they do happen. They can arise over seemingly minor details. And they can happen even on completely baseless grounds. Add to this that we are living at a time when media is being maligned and its credibility for truth-telling attacked, and it seems an exceedingly bad time to be signing such indemnity clauses.

Indemnity clauses like these place an unfair burden of risk upon freelancers. Most freelancers are uninsured, and don’t earn enough to keep a risk-assessing lawyer on their payroll. Most publications, on the other hand, are insured, and have the financial wherewithal to at least hire a lawyer when needed if not have one or more permanently on their payroll.

The Walrus was unwilling to negotiate any wording changes to the contract. So, after serious consideration, I retracted my pitch. Though it took a few more pitches, I soon found another home for the story at a publication with a more favourable contract – one that has reasonable expectations of professional conduct, but that doesn’t leave freelancers on the hook for legal costs in the event of a libel suit.

This experience was stressful. Contract negotiation is emotionally draining and anxiety provoking.

It’s my least favourite aspect of freelancing, but one of the most important ones, so retracting my pitch brought a sense of relief. That’s because the story I wanted to tell included real names, and discussed a scientific issue that some advocacy groups perceive as controversial. The risk of a libel lawsuit was small, but it wasn’t zero. So by seeking out a venue with a better contract, I was alleviating myself from a risk that was too great to endure. As an added bonus for my efforts, the new outlet paid a higher per word rate in US dollars. So in the end, I was financially better off, too.

When I first started freelancing, I was so excited to get a contract, and so poorly versed in contract literacy, that I very often signed enthusiastically without actually understanding what I was signing. But my knowledge of contracts has grown, thanks to resources for freelancers like Story Board, The Science Writers Handbook (Chapter 22: Contract Literacy), and many discussions in the freelancer grapevine.

If you make a living writing opinion pieces about your cat Fluffy or watching raindrops falling into a puddle, then getting sued for libel may not be something you need to worry about. But if you sign an indemnity cause and then write or produce a story about people with names, or about factual information that is politically, socially or commercially sensitive like medicine, debunking pseudoscience, or naming branded products or services, then you may be setting yourself up for crossing a rickety bridge. Signing contracts with indemnity clauses could, in the event of a lawsuit, send your financial assets free falling into that chasm.

In retrospect, finding out about their contract from other writers, or from previous posts on Story Board, was homework I should have done ahead of time. The experience also made me think that perhaps all of us should think about approaching new clients more carefully and strategically.

What if, as freelance writers, we were to approach this from a different tack? What if, rather than focusing on the beginning (pitching a story idea) and end points (publication in a venue we admire), we first focused on whether the infrastructure to get there is solid, reasonable, and safe?

Instead of investing time up front in research and pitching, then crossing your fingers about the contract, what if we could check the contract first and pitch only if that contract is okay? The mechanism that allows for this is shared knowledge. By creating a supportive network that shares information about contracts, and contract language, we can better avoid trusting in rickety bridges.

-Lesley Evans Ogden

I’m not a lawyer, so don’t take this as professional legal advice. Rather, I suggest using it as a starting point for closer examination of your contracts, and self-reflection about whether you are okay with, or not okay with, the risks that you take on when you sign contracts with an indemnity clause.

~~

When it comes to contracts, if you’re not sure what they mean, ask for help. Ask your colleagues. Ask the CMG. Use the ‘Lancer email list or the Story Board Facebook group to ask around for someone who has signed (or read but not signed) a contract for the place you’re hoping to work for.

Let’s work together to find out where the good, bad, and ugly contracts are. The Canadian Media Guild is embarking on a new mission to do just this. So, bring us your contracts! Send them to CMG Freelance branch president Don Genova at freelance@cmg.ca. Your name and identifying details will be redacted, and your contributions will help the CMG develop a tip sheet for members so that we’re all better informed about indemnity clauses and contract literacy. Watch this space for more details.