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Indemnity clauses and liability insurance
Published: January 31, 2002 What's my liability as a freelance writer? Should I buy liability insurance?
Unfortunately, both you and your publisher could be sued if anything you write is considered libelous, an invasion of privacy, copyright infringement (or plagiarism), an error and/or omission, product disparagement or harmful to readers (for example, health information).
To avoid sole pocketbook responsibility for such lawsuits, many publishers include an indemnification clause in their contracts. This clause holds the writer responsible for legal costs if someone sues over his/her writing content. Kirsch's Handbook of Publishing Law (Jonathan Kirsch, Acrobat Books, 1994) notes: "Perhaps no single clause ... is more startling and even shocking to the new author than the indemnity clause--a solemn promise that the poor struggling author will pay the costs of defending the rich corporate publisher. And yet no clause ... is more sacrosanct in the publisher's eyes. The indemnity clause puts teeth in the warranties and representations of the author, and--by putting the author at risk if a lawsuit is filed--the clause gives the author a powerful incentive to present a united front with the publisher in defending the lawsuit."
Dealing with indemnities
"The fact that they are virtually unenforceable--because most writers don't have sufficient financial resources--doesn't make indemnification clauses acceptable," says Brett Harvey, executive director of the American Society of Journalists and Authors (ASJA). To assist writers, last spring the ASJA released a position paper advising writers on what to do if faced with an indemnification clause in a contract.
The ASJA advises writers to first try to get the clause deleted. Freelance writers might try pointing out that many magazine and newspaper publishers no longer include this clause in contracts, as it can squelch investigative reporting on controversial issues. Writers can also add a "to the best of my knowledge" phrase, meaning the writer didn't intentionally infringe on rights. They can also limit their liability in several ways, notes the ASJA, including to what only they themselves wrote; to the advance or total sum that they received for the work (i.e., if you were sued over an article for which you were paid $500, your liability wouldn't exceed that amount); or to "final judgment"--if a court rules that they are guilty, after appeals have been exhausted. "You want to be sure you don't agree to pay for every frivolous lawsuit that comes along," says Harvey.
Keep in mind that some publishers view with suspicion any writers who try to have a contract altered.
Purchasing peace of mind
For some writers, getting liability, or media peril, insurance is a smart move. "Consider purchasing insurance if you write pieces that are likely to cause controversy," says Harvey. According to Kirsch, "Some publishers may be willing to cushion the blow of the indemnity clause by adding the author to its insurance policy...or by sharing the expense of defending and settling claims."
The bottom line for writers: Avoid signing a contract containing language that makes you uncomfortable. Receive consultation when in doubt or if you have difficulties getting a publisher to alter specific contract language. |
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