Oppressive freelance contracts add to the chill on journalism

The Trump administration’s attacks on the press — subpoenas and raids, threats from regulators, revocations of access, and meritless lawsuits and prosecutions — have led to an immeasurable chilling effect on journalism. The impact is heightened when these tactics target freelancers without resources or institutional backing. And with constant reports of journalists being laid off from their full-time jobs, there are a lot of freelancers out there.

So why are many of the news publishers that contract with these freelancers compounding the chill by requiring them to agree to indemnification clauses? These provisions pass on risk to freelancers by essentially saying that if the outlet gets sued over something the freelancer wrote, the freelancer is on the hook for legal fees and judgments. Some are written so that it doesn’t even matter whether the freelancer did anything wrong.

Mickey Osterreicher, general counsel for the National Press Photographers Association, believes “these provisions send exactly the wrong message to freelancers. They effectively say, ‘We’re willing to publish your work, but we’re also willing to shift our legal risk onto you.’”

In this era of strategic lawsuits against public participation intended to make criticizing the powerful financially ruinous, these clauses incentivize timidity. Even in best-case scenarios, the cost of disposing of a frivolous lawsuit can be crippling to a freelancer. But many states, and the federal courts, lack legal protections that make quick dispositions possible.

Freelance journalist Stephanie Bouchard says it’s rare to be presented with a contract without an indemnification clause (though she says smaller local publications — in her home state of Maine, at least — are more likely to omit them).

They’re also often presented as nonnegotiable, which Bouchard calls “a red flag” about whether the organization treats freelancers as partners at all.

Osterreicher points out that the clauses — which he notes have also crept into media credentialing agreements that photographers must sign to cover events — can be drafted so broadly that they “arguably require a freelancer to bear the costs of defending the outlet against claims resulting from the outlet’s own editorial decisions.”

‘A false sense of security’

So how did we get here? Is there an explanation other than that news outlets are taking advantage of superior bargaining power to bully freelancers? Perhaps it’s more inattention than malice, Osterreicher says. “I suspect many publishers and event organizers include them simply because they’ve been carried forward from one version of an agreement to the next, without much thought as to whether they’re necessary, enforceable, or consistent with the organization’s professed support for independent journalism.”

Susan Seager, a First Amendment attorney and director of the Press Freedom Project at UC Irvine School of Law, suspects the clauses are often “ripped from the playbook of large entertainment companies.” She explained that contract clauses designed for situations where the content creator is a well-funded production company “don’t make sense with a freelancer or book author with few financial resources,” she added.

Of course, news outlets are struggling too. But the clauses offer little actual protection. If anything, Seager says, they offer “a false sense of security.” One, enforcing them would drive most journalists into bankruptcy. You can’t get blood from a stone, as the saying goes.

Two, plaintiffs rarely sue journalists without also suing the far wealthier outlets that publish their work. When that happens, it’s in the outlet’s interests to retain experienced lawyers — otherwise, the reporter’s lawyer, if they can afford one at all, can tank the defense for everyone.

That means indemnification clauses accomplish nothing other than their inherent chilling effect. They’re almost never actually used, but reporters don’t know that, and if they do, they still don’t want to risk being the exception. For Bouchard, that means she needs to weigh whether her payment for a project — which may be just a few hundred dollars — is worth risking financial ruin.

In Bouchard’s view, what a publisher puts in a contract sets the tone for the whole relationship. She notes that outlets often encourage her to hold her nose and sign because the odds of litigation are low. An outlet telling a freelancer not to worry while the outlet is itself worried enough to try to pass on the risk is, in her words, gross.

Journalist pushback may not be enough

Still, publishers are often inflexible, whether out of greed or efficiency (outlets that contract with lots of freelancers can’t involve their lawyers to negotiate each one individually).

Further complicating things, according to freelance journalist Karen Fischer, is that many journalists don’t prioritize negotiating indemnification clauses, given how much else there is to negotiate in a new assignment, from payment terms to sourcing expectations to deadlines.

Nonetheless, both Osterreicher and Seager encourage journalists to push back. Seager notes that some of her clients have succeeded in getting indemnification language removed entirely, or at least modified to exclude situations where liability is the publisher’s fault. Several freelancers said that unions and professional associations of which they’re members have often been willing to help advocate on their behalfs.

Fischer said one editor was sympathetic to her recent request to modify an indemnification clause, but nonetheless told her the publication couldn’t release payment for work she’d already completed unless she signed the contract as written.

She signed, on the understanding her requested revision would go to the legal department and she’d be presented with a superseding contract once it was fixed. She hasn’t heard back since.

Clearly, the long-term fix can’t rest on individual freelancers chipping away, one contract at a time.

It’s time for publishers to cut these oppressive clauses out of their contracts. The SLAPP filer’s goal is to make hard-hitting journalism feel so dangerous and expensive that reporters self-censor. The industry shouldn’t be doing their job for them. Deleting oppressive indemnification clauses would show good faith and improve the journalism that freelancers produce, while costing publishers nothing.