Liability insurance: the freelancer’s dilemma

By Rebecca Rosen Lum

A stereo manufacturer sues a reviewer who pans the company’s speakers. A restaurateur mounts a legal challenge after a food critic describes the fare as inedible. A judge files a defamation suit after an article suggests he is being investigated for ethics violation.

Never mind that all these cases and many more like them went nowhere. It cost plenty to answer them.

While investigative reporters are frequently hit with court challenges, other specialties are vulnerable as well, says attorney Michelle Worrell Tilton of the Kansas City-based Media Risk Consultants. Entertainment writers are sometimes accused of copyright infringement. Food writers are frequently hit with suits, as are advice columnists –including automotive, real estate, and financial advice columnists.

That can be a chilling reality for freelancers who may not have the support of a news organization. Is a carefully worded contract protection enough? Or are they wise to obtain professional indemnity (or “media perils”) coverage?

“I think it is a good idea to have it,” says David Greene, senior staff attorney at the Electronic Frontier Foundation. “At a minimum, make sure you are covered by the publication, but it makes sense to fill in the gaps.”

In the case of an error or omission, California publications cannot be sued if they run an acknowledgement and apology in a prominent place. It’s important to bear in mind that the California Retraction Statute only covers newspapers and their Web sites. Personal blogs are not covered by this, so be extra careful if you’re writing on your own.

Media lawyers say freelancers should always work with a written agreement explicitly stating that the entity publishing the work will indemnify the writer in the event of a legal challenge. Naturally, the same agreement should also spell out the project’s scope, deadlines and payment,

“Most of the freelancers I’ve dealt with in my 30 years as a media lawyer get covered by the publisher,” said Judy Alexander, whose clients include the Center for Investigative Reporting. “The C.I.R. freelance contract says you’ll be named as an insured person under our media perils policy.”

Veteran independents also urge freelancers to communicate frequently with editors to head off surprised and mistakes.

Glenn Fleischman, editor and publisher of The Magazine and host of the podcast, “The New Disruptors,” takes on provocative topics, but has never been sued or threatened.

“I’ve picked my outlets fairly well and read contracts,” he says. “’Boing Boing,’ one of my regular outlets, and I consult about tricky issues, and they’ve proven themselves willing to sue or defend themselves as necessary for some stories.

But might not be lucky enough to work with a publication that’s so protective of its writers – so you should consider insurance.

Media perils coverage isn’t cheap. Guild Freelancers has collected quotes of $500 to $1,500 a year. But some organizations, including the Authors Guild and the National Newspaper Association, have become policyholders, making coverage available to their members. Guild Freelancers is currently exploring options to obtain coverage for our members.

Bear in mind that you can protect your personal assets by creating an LLC or corporation, creating a barrier from creditors in the event of a lawsuit. The common sole proprietorship offers no liability protection, notes freelance writer Dawn Witzke. Link:

“You can do everything right and still get sued,” Alexander says.  “You have to have legal representation or you’d be a fool.”

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