Focus on freelancing: Making sure you’re covered for liability

By Jane E. Allen
Independent journalist

Most staff writers for magazines, newspapers and other news outlets take for granted that if the subjects of their stories ever get litigious, the publications’ attorneys will be there to defend them.

But freelancers, especially those who have left newsrooms in the wake of buyouts, layoffs and shrinking news holes, may not realize that the contracts they sign sometimes leave them to their own legal devices. The agreements between freelancer and publisher may contain indemnification clauses that place liability for libel, slander, invasion of privacy or copyright infringement directly on the journalist.

For independent health writers doing investigative pieces about a drug, device, doctor or medical institution, that kind of potential liability could be costly.

Sally Lehrman, an award-winning science and medical writer in Montara, Calif., recognized her legal vulnerability after leaving the San Francisco Examiner 11 years ago. “I don’t know if all freelancers understand how serious it can be if you get hit with a libel suit,” she said. Lehrman knew that the Examiner‘s lawyers contended they didn’t have to defend investigative journalist Lowell Bergman against a $30 million libel suit filed in 1976 over a series he’d co-written as a freelancer. Bergman and Examiner staff writer Raul Ramirez, mounted an independent defense and in 1986 the California Supreme Court ruled in their favor.

For several years after going out on her own, Lehrman carried media liability insurance offered at a group rate through the National Writers Union. However, when NWU stopped offering the benefit, Lehrman hoped another professional group would pick it up as “a really important service to freelancers.”

Lehrman, as an at-large member of the board of directors of the Society of Professional Journalists, asked SPJ to check into it.

Terry Harper, executive director of Indianapolis-based SPJ, said that when he looked into the feasibility of offering such insurance, he learned that it would require review by the insurance commissioner of every state in which SPJ had members. “It was beyond what we were capable of doing,” Harper said. “The cost-benefit wasn’t there for us.”

Of SPJ’s 9,000-plus members, only about 400 identify themselves as freelancers, he said. “We didn’t have 400 people saying SPJ has got to do this. A couple of people had brought it up.”

Individual media insurance at reasonable rates is very hard to find. However, the National Federation of Press Women (which includes men despite the organization’s name) offers a media liability policy to its members through Walterry Insurance Brokers in Clinton, Md. The policy, underwritten by the Chubb Group of Insurance Companies, costs $395 a year. It covers defense costs; comprehensive coverage for all claims that stem from the reporting and publication of the information, including libel, slander, invasion of privacy and copyright infringement. It also covers the legal costs of challenging subpoenas seeking journalists’ confidential sources and protects confidential sources, “even if this compromises the ability to defend a claim,” according to Walterry’s Web site.

Tonda Rush, a media attorney with the law firm that manages the National Federation of Press Women’s headquarters in Arlington, Va., said NFPW hasn’t aggressively marketed the coverage, in part because the organization is a federation of state organizations and most marketing goes on locally.

NFPW created the insurance benefit out of the recognition that many of its members, who started in newspapers and may now be self-employed journalists, don’t have the time or money to devote to a legal defense.

“As a private business person, dealing with litigation takes a huge amount of time, and it’s a lost business opportunity – time you could spend writing and earning money. And when you’re trying to keep your mortgage paid, and you’re responsible for keeping money coming in, anything that’s not billable time is money lost to you.”

The insurance, she says, “doesn’t keep you from being sued, but it does give you access to counsel.”

Tips for Freelancers:

Once the National Writers Union stopped offering media liability insurance, Lehrman said she counted in part on general business insurance she’d purchased when she rented office space. But, according to several people interviewed for this story, it’s unclear how much protection journalists might get under a general business policy or under the general provisions of a homeowner’s policy. These typically exclude liability for professional services. If you have a home office, you may be able to add a specific rider to a homeowners or renters policy that would cover some liability. It’s worth asking your insurance agent.

Lehrman, following the advice of the American Society of Journalists and Authors, carefully reads the fine print of her freelance contracts. Where a contract stipulates that the writer assures the publisher that all the information is true and correct and doesn’t libel anyone, she adds the words: “to the best of my knowledge” before sending it back with her signature.

“All they can do is refuse,” she says. “I recommend writers read those contracts carefully and make adjustments as necessary, so that they’re not giving away all their rights.”

On ASJA’s Web site, in a section entitled “How to Deal With Indemnification Clauses,” the association advises that writers first try to get the indemnification clause deleted.

Freelance journalists should ask if the publisher is willing to cover them under the publication’s insurance policy, advises Leib Dodell, chairman of Media/Professional Services in Kansas City, Mo., the world’s largest media insurer.

“Most of the media insurance policies issued to, for example, a magazine, give the magazine publisher the option of extending coverage to the freelancer, often for the same amount of money,” Dodell said. “The freelancer can and should at least ask the publication, ‘Can you add me to your Errors and Omissions policy?’”

If the freelancer cannot get covered through the publication, it’s time to consider buying coverage. However, Dodell acknowledged the cost for an individual media liability policy can be prohibitive: “At many companies, it starts at $2,000 to do a traditional policy.”

Recognizing the explosion of blogging, Media/Pro is trying to develop a program that would make media liability insurance available to this newest cadre of journalists. But for freelancers, affordable individual coverage remains mostly elusive because the demand hasn’t been high enough for organizations to offer it at group rates. “The challenge is getting that critical mass,” he said.

Sallie Glazier Randolph, a Buffalo, N.Y.- area attorney, who specializes in publishing law and does work for the American Society of Journalists and Authors, offered some practical suggestions for freelancers concerned about liability:

• Be truthful in your reporting and meticulous in your fact checking.
• Become educated about copyright law to make sure you’re not infringing anyone’s copyright. The U.S. Copyright Office’s Web site “is a fine place to start,” says Randolph, who also is a freelance writer.
• Become familiar with libel and defamation. Start by reading the Associated Press Stylebook and Libel Manual.
• Educate yourself about professional standards pertaining to your work. You can do that by joining professional journalism associations.

Randolph further suggests that if you’re doing high-risk work, such as investigative journalism, consider what would happen to your finances if you lost a lawsuit for copyright infringement or libel. A financial adviser can help you protect your assets with strategies such as shifting real estate into a spouse’s name, or that of a parent or sibling.

Most journalists, however, don’t have significant assets. And in most cases, “the person doing the suing is first going to go after the publication,” she says.

If you do carry insurance, Randolph suggests notifying your carrier “as soon as you’re aware of a potential claim – somebody else alleging you’ve done something wrong. You may not be covered if you don’t make the insurance company aware.”

If you find yourself facing a subpoena, Randolph suggests contacting ASJA, which often lends its name to cases, and calling the 24-hour hotline of The Reporters Committee for Freedom of the Press, a nonprofit organization in Arlington, Va., that provides free legal help to journalists.

Terry Francke, the founder of Californians Aware, a nonprofit organization that supports open government, and the former counsel to both the California First Amendment Coalition and the California Newspaper Publishers Association, suggests reporters “have a crystal clear understanding with your publisher about whether they’re going to back you if you have a source who is being sought for identification.”

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Jane E. Allen is a freelance writer and AHCJ member based in Los Angeles.