What’s in your contract?

Libel notice served to Toronto Life should give freelance writers pause for thought

York University’s recent libel notice to Toronto Life should serve as a sobering reminder for Canadian freelance writers. The article at issue – a feature on sexual assault at York – was written by freelance contributor Katherine Laidlaw.

Fortunately for Laidlaw, Toronto Life’s freelance contract clearly states that, in the event of a libel lawsuit, freelancers’ legal costs will be covered. Most freelance magazine contracts in this country are not nearly so clear-cut on the issue. If you write about sensitive subjects, the issue of libel clauses in contracts is something that deserves your serious consideration.

According to Derek Finkle of the Canadian Writers Group, many publishers’ contracts leave freelancers vulnerable to lawsuits. Finkle says publishing contracts tend to take one of three possible approaches to the issue of libel.

The Toronto Life contract is an example of a contract that uses clear language to state that freelancers’ legal costs will be covered to the full extent of the magazine’s libel coverage – excluding, perhaps, cases of plagiarism or copyright infringement.

Other contracts, says Finkle, place a cap on the amount that a freelancer would have to pay in a case where a ruling of libel was decided against them.

The third type of contract makes no mention of libel at all.

“I wouldn’t say it’s common that contracts are as clear cut as the Toronto Life contract in terms of articulating the extent of the support the writer will receive,” says Finkle.

“And a lot of them, in terms of the actual language in the contract, are completely mute on it.”

If a contract does mention libel, you still need to read the terms very carefully. Finkle advises freelancers against signing any contract that seeks indemnification from its freelance contributors.

“[These contracts] basically leave the door open to recover those costs via suit against you, the freelancer,” he says.

What’s more, Finkle says that a lot of the contracts that seek indemnification also give the publisher final say over the published piece.

“The publication gets the final say in the piece,” he says. “So if that’s the case, how can you be solely responsible for something that you don’t even, in the end, have full control over?”

Although freelancers should, of course, strive for accuracy and truth in reporting, Finkle also says it’s inadvisable to sign a contract affirming that you will not commit libel.

“I’m always a little bit leery of people who want you to warrant that you will not libel someone. Because libel is subjective and opposing lawyers in a civil suit obviously won’t often agree on what libel is,” he says.

Finkle says that language signifying intent is important when it comes to libel clauses in contracts. Canada Wide Media recently changed the libel clause in their freelance agreement in response to the objections of a large number of its contributors. While its previous contract indemnified the publisher against legal costs arising from a lawsuit, its new agreement asks writers to affirm that they will not “knowingly produce a Work that constitutes defamation, invasion of privacy or appropriation of personality.”

Finkle says the word “knowingly” is key.

“I think there’s a big difference between knowing what libel is generally speaking in layman’s terms and having copy vetted by someone who’s actually spent quite a bit of time studying the intricacies of libel law.”

Publishers themselves seem reluctant to openly discuss their policies regarding libel. Story Board emailed several publishers to ask about policies relating to freelance contributors and libel lawsuits. Aside from Canada Wide Media – who emailed back with their updated libel clause – Reader’s Digest was the only publisher to send a reply.

In response to questions about whether freelancers’ legal fees would be covered in the case of a defamation lawsuit, managing editor Dominique Ritter would only say that the publisher thoroughly vets all potentially sensitive editorial content.

“As such, it is quite doubtful that a freelancer would end up bearing the burden you have described. We protect our contributors and the quality of our publication by ensuring the highest journalistic standards,” she said via email.

Although it is reassuring to know that publishers are likely to have sensitive stories vetted by a lawyer, problems can still arise. Derek Finkle says that lawsuits often come from unexpected places.

“In my experience as an editor, it’s not always the obvious stories that end up getting you in trouble. It’s often something relatively inconsequential that actually gets someone angry,” he says.

Finkle says freelancers should make sure they know where they stand legally before taking on big stories.

“It’s really easy to think ‘oh I’m doing a big feature and this is going to be great,’ but you have to look beyond that to the potential fallout.”

If your contract does not address libel at all and the subject you’re tackling is sensitive in nature, Finkle recommends getting in touch with someone senior at the publication and asking them to spell out in writing what will happen if legal problems arise.

“I think it’s really important to run it up the flagpole, if you will, and get somebody to actually state in writing what the protection will be.”

Although a contract amendment is ideal, he says, it’s not always easy to have publishers change a standard agreement.

“I think what happens for a lot of editors at a larger institution is that it’s hard for them to get clauses added to their standard agreement because they have to go through the legal department, and that can result in a lot of hand-wringing. Whereas what seems to happen in a lot of these instances is someone senior like an editor or a managing editor or a publisher will put something in writing that articulates what’s going to happen. And I think that’s really important. I would want something signed and sent to me,” he says.

And there are a lot of details that need to be spelled out. Finkle points out that there are several stages to a defamation lawsuit.

“There’s the first step, where you can get a letter demanding an apology and a retraction. You still might have to hire a lawyer. Are you on the hook for the expense of that? And then if you get sued, and the lawyers from the publication defend that, are you on the hook at that point? At what point do you owe money to them? Is it only if you have a ruling against you?”

Moreover, in the current situation at Toronto Life, reports state that York has served libel notice against both the magazine and the writer.

“Usually they’ll sue both just to cover their bases,” says Finkle.

“So then what happens? Are they going to cover your legal defense? Are you going to be on the hook for your legal defense? Are they just going to cover themselves? These are all questions that I think one needs to straighten out. In these indemnification contracts, the way it often seems to be worded is that if you’re sued or if there are expenses coming out of defending something, basically the publication has the right to countersue you.”

If you’re covering weighty topics in your freelance work, these are important issues to consider. Although an assignment for a major magazine or newspaper can be an exciting career achievement, hazy contracts can have serious life consequences.

“It could be a journalistic coup to write about an important topic. It might be a worthwhile issue to cover,” says Finkle, “but, as the writer, before I agreed to do that I would really want to know where I stand.”

“I think for writers, if they’re going to tackle serious subjects, the big question is, is it worth losing all of your assets for?”