Writers speak out against The Walrus’s new freelance agreement

Last fall, The Walrus’s contributor agreement came under scrutiny during what is referred to by many freelancers as “the Alex Gillis affair.”

The incident – which you can read about in detail on Canadaland – led to a discussion on the Toronto Freelance Editors and Writers listserv about kill fees and “idea appropriation.”

Literary agent Derek Finkle weighed in on the subject on TFEW, commenting that “Writers should be paid in full for changes in direction outside of their control” and that the language in The Walrus’s kill fee clause contributes to “condescending behavior” towards freelance writers.

Finkle’s note was followed by a message from Walrus editor-in-chief Jonathan Kay, who invited Finkle to meet with him and discuss his concerns.

Finkle met with Kay to discuss the contract. But although Kay assured him he would contact him again once a new draft was prepared, Finkle said he never heard back about the changes Kay intended to make.

At some point this year – it’s not clear precisely when – The Walrus began offering an updated freelance contract to its contributors. Some aspects of the supposedly improved Walrus agreement once again have Canadian freelancers speaking out against contract clauses that infringe on their rights.

The new contract

Finkle says there are some improvements in the new contract. It includes a clause ensuring that freelancers’ invoices will be paid within 30 days and another promising increased payment if the final length of the published work exceeds its assigned length.

But a number of clauses, he says, are quite surprising because they suddenly present considerably less favourable terms for Walrus freelancers.

The contentious kill fee clause now states that if The Walrus determines that the first draft of a story “cannot be made acceptable through revisions,” the magazine will pay a kill fee of 50 percent of the agreed-upon fee plus expenses incurred up to that date.

Finkle says this clause should be clearer about compensation for a writer if a story is killed for reasons beyond his or her control.

“I’ve had my own issues in the past with the Walrus killing stories, not providing any explanation, not wanting to pay what I thought was an appropriate kill fee,” he said.

Even more concerning, he says, is a clause that holds the freelance writer liable for 50% of any damages or costs arising from lawsuits arising from the writer’s work. The clause also holds the writer responsible for 50% of costs incurred by the publisher in defending the claim, if they’re not covered by insurance.

Finkle says this clause is especially problematic in light of another clause, which states that the final decision about “material changes to the Work after editing” rests with the publisher.

“The head scratching thing about this contract is that the Walrus wants to have its cake and eat it too. They want to have total control over the final content, but if there’s a legal problem, they want the writer to pay half,” said Finkle.

Asking a writer to put their assets at risk in a scenario where a publisher can make changes without the writer’s consent, he said, is unacceptable.

“I don’t think they meant it this way, but it’s pretty insulting, really,” said Finkle.

Finkle said the new contract is reflective of an attitude towards freelance writers by management at The Walrus that he’s observed for several years.

“I feel like there is a bit of a ‘we know best’ attitude that’s been there for a while. And the contract tells me it’s still there,” he said.

Freelancers respond

Story Board reached out to several Canadian freelance writers to get their take on the new contract, and found that all had the same objections as Finkle.

Toronto freelance writer Alison Motluk said the most alarming clauses are the ones related to potential lawsuits.

“The Walrus will only cover the writer’s legal costs if we win the case. If we lose or settle – and it’s not clear who gets to decide whether to settle – then the writer has to pay half the damages and half the cost of the defense,” she said via email.

Motluk predicts that if the magazine refuses to change this clause, writers will stop bringing tough stories to The Walrus.

“Publications should indemnify writers, not the other way round,” she said. “The Walrus used to have a pretty good contract, so I’m sorry to see these changes.”

Nova Scotia freelance journalist, editor and consultant Kim Pittaway said the liability clause raised a number of questions for her, too.

“What kind of insurance does the Walrus have to cover this, what are its terms, what proof of coverage are they supplying to me as a writer and how do I ensure that The Walrus maintains such coverage?” she said via email.

“And even with all of that, I would be very wary about signing a contract that puts me on the hook for 50% of the damages and costs to plaintiff, and 50% of the cost to the publisher (that latter one seems especially galling) – especially given that the rate the writer is likely to have been paid probably would cover, what, a day or two of any decent lawyer’s billings?”

“A total disregard for the risk to writers”

Freelance journalist Alex Gillis said the risk to any writer who signs The Walrus’s new contract is huge.

“Some of those clauses are just callous,” he said when reached by phone last week.

“There’s a total disregard for the risk to writers, given the magazine’s recent history and the gossip floating around about Walrus editors rewriting stories from start to finish with no or little input from the writers,” he said.

Gillis said the magazine is trying to have it both ways – the publisher wants to have final decision on rewrites but is also trying to force the writer to accept half of the responsibility for those rewrites.

“That potential situation is unethical and unfair,” he said.

David Hayes, a self-described “career freelance writer” and co-founder of the TFEW listserv, said that contracts like this one are relatively new. Clauses that hold freelancers responsible for libel, he said, did not exist through most of his freelancing career. And he predicts they’ll have a profound impact on freelance journalism.

“It has a chilling effect,” he said during a phone interview earlier this month.

Good editors, he said, insist on critical reporting, which may include negative angles on a subject.

“As a freelance writer I’d be thinking, ‘I don’t want to put anything like that in there. Because I’m going to be liable if there’s any kind of lawsuit,’” he said.

Hayes described the idea of signing such a contract as “an insane prospect.”

“You could lose your home, you could lose your car, you could lose your savings, you could lose future wages, which could be garnished to pay for this. One domino and an individual’s life could collapse. As opposed to the media outlets, which are big corporations and in some cases multinational corporations,” he said.

Further, said Hayes, media outlets need to consider the fact that stagnant writing rates have left many freelancers in a precarious financial position.

“Those media outlets should maybe remind themselves of what they’re paying the writers. Still paying a dollar a word since the 1970s? I wonder why the writer wouldn’t be able to afford this?”

Hayes said he’s seen magazine industry “best practices” deteriorate over the past few years. It’s a trend he hopes magazine publishers will reconsider.

“I think there needs to be a step back at all of these publications. They need to be thinking about the creators they’re hiring,” he said. “We’re not just some person you’ve hired to replace the tiles in the bathroom. We’re the creators who are doing the writing that your publication’s reputation rests upon.”