Advice - General / Commissions and contracts / Indemnities - challenge them and get insurance

Honourable publishers and broadcasters will back freelances if lawsuits arise from work that they have published or broadcast. Some, however, want to offload as much risk as they can, regardless (or perhaps because) of freelances being particularly vulnerable financially.

It is increasingly common for contracts to include clauses that require the journalist to provide "warranties" and indemnities". This has been common in book publishing for a long time.

A warranty clause typically begins "the Author warrants the work will not contain anything defamatory, libellous, indecent or obscene ...."

An indemnity clause typically begins "The Author will indemnify the Publisher against all costs, expenses, damages, etc arising from a breach of the Warranty."

These clauses combined mean that if a freelance agrees to them, and turns out to have breached the warranty, they are liable for fronting the costs of defending any legal action, plus any damages awarded, and both side's legal costs if they lose. This could prove financially ruinous.

The more pernicious contracts combine a warranty, an indemnity and a waiver of the moral right to protect the freelance's work. (You can always tell there's something up when you need four technical glossary entries in one short sentence.)

The effect of such contracts is that the publisher or broadcaster reserves the right to change the work without asking, and then expects the freelance to bear the cost of legal action arising from the resulting mangled version. No freelance should have to bear this risk. In general, publishers and broadcasters are responsible for the editing of work - that's what they're for - and they should bear the liability.

Getting the contract changed

Freelances should, obviously, agree to take all necessary care. As with copyright, it's very often down to the freelance to do the thinking for the editor, who reasonably wants to concentrate on the content, not the details of the contract provided by their firm's legal department.

The freelance may be able simply to score through unacceptable terms before returning the signed contract on paper. Editors will often be more reassured, however, if the freelance provides an acceptable alternative form of words. The freelance must remember to initial each change they make as well as signing at the bottom.

One large publisher, for example, agreed to change its contract wording to:

all statements in the Work purporting to be factual are true to the best of the Author's knowledge having undertaken proper and diligent research with respect hereto

NUJ members under pressure to sign can get advice on alternative wording, including a lawyer-generated alternative form of words, from the Freelance Office.

Insurance

Of course, legal risks can arise regardless of such contracts. Getting an indemnity clause changed does not protect the freelance against the possibility that a strange litigant will decide to sue them instead of the publisher, for example. The NUJ has negotiated an insurance policy for members that covers costs of defending cases brought against freelances for libel and slander, infringement of copyright, breach of confidentiality, negligence, and liability to the public. It covers all work produced since the freelance joined the NUJ and, subject to EU law, wherever in the world the work is published or distributed. See the link below.

Freelances who handle original artwork or transparencies or permissions for the use of these should check that their client has adequate insurance to cover loss, damage or inadvertent copyright infringement.

Freelances commissioned to carry out dangerous work must check that the client will insure them against personal injury and damage to equipment. See the roundup of Safety at work articles.

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Text © Mike Holderness & previous contributors; Moral rights asserted. Comments to ffg@londonfreelance.org please. You may find the glossary helpful.

The National Union of Journalists must not, can not and would not wish to dictate rates or terms of engagement to members or to editors. The information presented here is for guidance and as an aid to equitable negotiation only.

Suggestions apply to contracts governed by UK law only. In any event, nothing here should be construed as legal advice.