Defamation clause in new Canada Wide Media contract remains unchanged
Last week it was brought to our attention that Canada Wide Media, which publishes of a variety of magazines including Westworld and BC Business, has updated its contract for freelance contributors. Back in May, Story Board reported that the CWM contract contained a clause that places responsibility for libel suits resulting from a published work squarely on the writer’s shoulders.
At that time, CWM’s Vice-President of Editorial, Kathleen Freimond, told us that they would discuss the issue with their lawyer when the contract next came up for revision. We contacted CWM again this week with some questions about the new version of their Master Author Agreement, which took effect on November 1, 2012.
“we do expect a level of journalistic professionalism”
Canada Wide Media’s Editorial Operations Manager, Mike Roberts, replied via email and said that the agreement, which requires writers to confirm that “the Work will not constitute defamation, invasion of privacy or appropriation of personality,” has been vetted by CWM’s legal team.
“Canada Wide Media engages hundreds of Canadian freelance journalists each year, and we pride ourselves on our honest, transparent dealings with these new and repeat contributors to our many media titles,” said Roberts.
“That said, we do expect a level of journalistic professionalism from our freelance writers that includes the ability to discern work that constitutes defamation, as defined in The Canadian Press Stylebook, as well as other reference texts and resources readily available to the working journalist in Canada,” he said.
“As any writer/journalist worth her salt in this country will tell you — if in doubt, leave it out. Or call your editor.”
While it’s certainly advisable for every journalist to familiarize themselves with the guidelines set out in The Canadian Press Stylebook, this contract has serious legal implications for writers. Libel law is complex and decisions regarding defamation are ultimately made by the courts. Damages in Canadian defamation lawsuits have been estimated by one Vancouver media lawyer at an average of between $70,000 and $100,000.
“It’s a way for the publisher to ultimately try to hold the writer solely liable”
Toronto lawyer Iain MacKinnon specializes in media and intellectual property issues. He says that if a defamation suit arises because of a story published in a magazine, the publisher — as well as the writer — will be liable.
“The purpose of that type of wording is to allow the publisher to pursue the writer for breach of contract to indemnify the publisher for damages and legal costs it incurs if it is found liable for defamation,” he says.
“It’s a way for the publisher to ultimately try to hold the writer solely liable on a contract basis, despite the fact that the publisher may be found liable vis-a-vis the person who was defamed.”
Derek Finkle of the Canadian Writers Group says he is not aware of any other major Canadian publisher that asks freelance writers to indemnify the publisher when it comes to libel. While similar clauses appeared recently in agreements from The Grid and Reader’s Digest, they have since been amended. After concerns were expressed by the Canadian Writers Group and the Canadian Media Guild, publishers modified the language in their contracts — adding phrases such as “knowingly defame” or “intentionally defame” to acknowledge that writers are usually not experts in the specifics of libel law.
Furthermore, since this agreement also gives Canada Wide Media “the right to edit, summarize and/or translate the Work for publication in all forms of media and in all languages” in which they publish, it’s conceivable that writers could be liable for work that was altered after they submitted it. Should you decide to sign this agreement, it’s advisable that you request to see the final version of the story before it is published.
“we look for and find alternate solutions to killing a story”
Another issue of concern for freelancers who are considering signing the CWM agreement is the lack of any mention of a kill fee for articles that are rejected by the publisher. Although the contract does give the publisher a maximum of four weeks to decide whether they’ll publish the work, there is nothing specified regarding a fee paid upon rejection. In response to Story Board’s request for clarification on this issue, Mike Roberts said that Canada Wide’s policy is that kill fees are negotiable.
“In all but the rarest circumstances, we look for and find alternate solutions to killing a story a writer has worked long and hard to produce,” he said. “Our editors craft well-scoped assignment letters and work intimately with our contributors to ensure the work we ultimately receive from a writer meets or exceeds our publishing needs.”
Finally, while the agreement does not specifically mention ebooks, it does grant the publisher the right to publish the work in question across all forms of media in which Canada Wide Media publishes. Story Board asked Mike Roberts whether the contract gives the publisher the right to publish the work in ebooks without paying the writer royalties.
“Canada Wide Media does not publish ebooks at this time,” he said. When asked whether he thought the contract gives Canada Wide Media the right to publish writers’ work in ebooks in the future, Roberts said that the company has no immediate plans to publish ebooks.
“The publishing and digital landscapes are changing too quickly for me to comment meaningfully on how we might engage our contributors in the future, should we ever choose to pursue that particular business line,” he said.
Pause for thought
If you’re concerned about signing this — or any other — freelance contract, there are groups and resources available to provide you with advice, including the Canadian Media Guild and PWAC. While it can be difficult to consider passing up an assignment because of a contract, taking full responsibility for libel is a step that should, at the very least, give you lengthy pause for thought.
We welcome your comments on the topic of freelance contracts in the comments section below.
