As a guy who’s 5 foot 19 inches — I’ll let you do the math — doorways are not my friend. Neither are chandeliers, ceiling fans and low-flying planes. But at least with doorways, I know what to do when one comes along: Duck. It’s automatic, a subconscious protective mechanism that’s prevented countless concussions.
But sometimes putting ourselves on autopilot is absolutely the wrong choice, like when we get a new contract and reach for a pen without even skimming the fine print.
This is especially common among beginners who really want that writing gig, like my pal who just sold his first novel and couldn’t tell you a thing about what his contract says. But even veteran writers ignore their contracts at their peril.
YOUR CONTRACT CAN COST YOU
Sure, it’s not likely that fine print will hurt you. But one threat lurking in contracts — the indemnification clause — seems to be putting more independent writers in danger.
The Poynter Institute, the journalism think-tank, explores indemnification clauses in a disturbing story published in May. (To read it, go to bit.ly/1c47DAb.) It says a paid Forbes contributor named Dolia Estevez is facing a lawsuit over her article that names the “10 Most Corrupt Mexicans of 2013.”
One of the 10 people is suing her for defamation, among other claims. Forbes, which is being sued too, “told Estevez she was on her own, invoking a provision of its standard freelance contract stating that web writers are ‘responsible for any legal claims arising’ from their work.” In other words, an indemnification clause.
HURTING JOURNALISTS AND JOURNALISM
Fortunately, Estevez found attorneys to help her at no cost. But you may not be so lucky.
The Poynter story quotes me as saying that “other than making sure you get paid, these clauses are the biggest danger for freelancers, the biggest thing they should worry about.”
Indeed, writers should avoid signing indemnification clauses whenever possible, since they often make the writer responsible for all legal defenses and damages. Some writers assume they’re OK because they’ll be accurate and won’t libel anyone. Think again. It’s impossible for any writer to understand libel laws in every state and country, and even a frivolous lawsuit could tie a writer up in court for months or years.
Indeed, just a few weeks ago I faced a retraction demand from an attorney over an online article. The publication talked to its attorney and handled it. Thankfully, I’d negotiated away an indemnification clause when I signed the outlet’s contract years ago. Otherwise, I could be on the hook to pay an attorney to figure out what to do to protect myself.
In addition to hurting independent journalists, indemnification clauses harm journalism itself. They discourage freelancers and authors from engaging in investigative reporting because of the higher likelihood that they’ll be sued.
POYNTER HOLDS FIRM ON WRONG SIDE
The most surprising fact in the Poynter article comes in a disclosure at the end: “Poynter.org is currently creating an updated independent contractor agreement for freelancers, and it currently plans to include an indemnity clause.”
Wait, what? Poynter, devoted to journalism best practices, is planning to force freelancers to agree to what can only be called a worst practice? That’s outrageous.
I called Poynter’s attorney, and we had a long chat about indemnification clauses. She was polite but didn’t budge regarding Poynter’s position. She believes independent writers have a variety of ways to protect themselves, including libel insurance and “umbrella” liability coverage from their homeowners or renter’s insurance.
But we’re hearing that libel insurance, which has long been expensive and difficult to get, is becoming even more elusive. And relying on property insurance, designed to protect people from liability dangers like a mailman tripping on the porch, doesn’t seem to be a feasible answer for many independent writers.
WHAT YOU AND ASJA CAN DO
Indemnification clauses seem to have become more common, and it’s clear that they pose a significant danger to members of ASJA and independent writers as a whole. So what now?
As a writer, you can take action yourself. If you deal with contracts, make sure to read them and understand the risks they pose. If you spot an indemnification clause, consider negotiating to revise the language or make it disappear. In some cases, the publisher may send you an alternative contract that’s friendlier to your needs.
Think about contacting an attorney to help you decipher the true meaning of the indemnification language. ASJA can connect you to experienced lawyers, or you may hit up a legal beagle friend. You might discover that the wording doesn’t mean what you (or the publisher) thinks it does, as I discovered when an attorney pal deciphered an MSNBC.com contract for me. I thought I should run, but he said it was actually fine, so I signed and enjoyed a great gig.
You may decide to accept an indemnification clause after considering the risk, as I’ve done once or twice lately. It’s OK, and we won’t shame you. That’s not how ASJA operates. We educate instead of dictate.
We can do more on that front. I’m exploring how we can teach independent writers about indemnification clauses. First, we need to better understand how common they are, the true risks they pose to writers, and the best ways can protect ourselves. This will require research, and ASJA may have to pay for it. Then we’ll disseminate what we learn to writers and publishers and push for change.
For now, stay informed and watch out. Don’t let a contract — or a low-hanging doorway — hit you when you’re not looking.