|Reporter Ian Urbina, above left, in his documentary for The New Yorker on how fish-meal production is destroying Gambia’s waters, is an example of an investigative journalist who benefited from better protection from legal liabilities. Image: The New Yorker/YouTube. Click to enlarge or view the 10-minute video.|
Freelance Files: New Program Protects Investigative Freelancers From Legal Woes
By Erik Hoffner
One of the biggest vulnerabilities facing freelancers these days, something troubling that we're seeing a lot lately, is “indemnification,” or liability for expenses in the event of a legal claim, or even a threat of one, over something one writes.
One organization responding to this is Freelance Investigative Reporters and Editors, or FIRE, which helps freelance investigative journalists from diverse backgrounds to produce investigations in the public interest, mainly by providing direct reporting services.
FIRE’s founder and director, Laird Townsend, answered questions about this new program via email:
SEJournal: What are your main concerns over the recent trends in indemnification?
Laird Townsend: Low pay rate for investigative hours is economically risky as it is, but the liability question is of a different magnitude — especially if you’re on the hook for the publication’s attorney’s fees and court costs. On these terms, some freelancers reasonably avoid sensitive investigations — or even exploring whether to propose them. That’s my main concern — the chilling effect.
SEJournal: Have you noticed if top freelance writers are opting to write “safer” stories because of it?
‘We need to increase accountability journalism,
so we need to advance legal protection.’
— Laird Townsend of FIRE
Townsend: Anecdotally, no doubt, since our 2015 survey. As one FIRE-supported freelancer bluntly put it in a recent testimonial: “Right now many of us don't even want to get involved in an investigative story.” And it’s understandable. By definition, non-investigative features — trends, profiles or policy stories — don’t sharply single out any institution or individual for wrongdoing. That means they’re not investigative — and safer. But we need to increase accountability journalism, so we need to advance legal protection.
SEJournal: What is FIRE doing to help?
Townsend: We are taking steps to shore up legal protection for accurate, fair, responsible freelance reporting. To start with, we recently commissioned ex-Bloomberg News General Counsel Charles Glasser to craft a boilerplate freelancer contract that offers solutions on copyright, revisions, proofs, severability and indemnification. Publishers or broadcasters won’t always need the template, and their contracts will often suffice. But by either means, a publisher or broadcaster would now receive a FIRE-supported story only if they legally protect the reporters as they would their own staff reporters. Hopefully more will do so nationwide.
SEJournal: And you've already had success, right? Didn't one magazine become the first outlet to sign FIRE’s boilerplate agreement?
Townsend: Yes, a magazine was the first to sign the template in December, and the story is moving toward publication as we speak. But another magazine, The New Yorker, just released a FIRE-supported story on its own contract and insurance, which did the job.
SEJournal: What is better about FIRE's recommendation versus a reporter getting their own insurance policy via the Freelancers Union, for example?
Townsend: For one thing, you don’t have to file a claim. Compared to an outlet’s indemnification, most individual insurance policies involve a huge deductible, raised premiums from a claim and an insurance company that’s smaller and weaker than the outlet’s, with less leverage and more incentive to settle, even on bad terms. It’s also the right thing for an outlet to do. And it actually benefits the outlet, according to our research. Having two separate defending parties can complicate matters.
SEJournal: In addition to providing this program, you've just launched a legal service for freelancers pursuing sensitive investigations. What will that look like?
Townsend: Like a legal clinic on insurance, indemnification, rights and other relevant matters. Reporters can actually inform the new service by relating their experiences in this brief FIRE survey. But on a trial run through April 15, we are providing pro bono access to one of two experienced First Amendment attorneys — Glasser and former Media Law Resource Center General Counsel Henry Kaufman — for contract-related legal assistance. We think editors and producers will also benefit. They want to do the right thing. Sometimes their own insurance policies can be so opaque as to obscure relevant freelancer provisions — which the attorneys and other experts can help demystify.
Erik Hoffner is an editor for Mongabay.com and occasional freelance photojournalist.
* From the weekly news magazine SEJournal Online, Vol. 6, No. 11. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.