A refresher on indemnity and liability in contracts
by Don Genova
One of my roles as Organizer for the Canadian Freelance Guild is to help members interpret and negotiate contracts they’re asked to sign for the work they are about to do. (Lesson One: Agree on the contract before you start doing the work.)
With each contract I review, it’s almost a certainty that it will contain clauses which are either patently unfair to the freelancer, or leave them open to legal action that would cost them far more to deal with than the value of the contract they’ve signed.
Most of this comes down to the clauses about indemnity and liability. Many of them suggest that you, the freelancer, absolve the publisher from any responsibility for problems created by the work you produce, even though most of the time your end product is a co-operative effort between you and an editor or producer or an entire editorial team.
This acceptance of responsibility can happen even though the publisher has also asked you to give up your copyright and moral rights to your work. Giving up your moral rights means the publisher can make any changes to your story without having to consult you. So what happens if they make changes and end up making your original work ‘actionable’?
While going through the Story Board archives, I came across a post written by Story Board editor Rachel Sanders nearly two years ago featuring advice from Vancouver lawyer Dan Burnett, who has been practicing media law for close to 30 years. In re-reading it, I discovered Burnett’s sound advice of two years ago is still applicable to contracts freelancers are being asked to sign today.
Some highlights:
– “If a media publisher got an article written by a freelancer and had the freelancer sign an agreement indemnifying them in the event of any legal action, that would mean indemnifying them for the cost of the action, win or lose,” he said. “A lot of times with libel suits, the fees end up well in to the six figures. And a freelancer, for the sake of one article paying a few hundred bucks, might be potentially risking personal bankruptcy.”
– “If it is a clause that is actually saying I’m financially indemnifying you for any legal action over the story I’m writing, I would want to see that struck out.”
– Burnett also recommends that freelancers inquire about the status of the publisher’s insurance. He said if he were a freelancer he would want a clause included in the contract stating that the freelancer is considered an insured under the publisher’s insurance contract. Asking to be covered under the publication’s insurance, said Burnett, “would not be that big an ask.”
– Burnett also said a publisher might be risking its own reputation by not protecting its freelancers in the case of a defamation lawsuit.
“It isn’t just the freelancer who decides what to publish. Ultimately the editor decides what is going to go into print. So it’s a company decision that’s being made. And they want to stand by it and they want to be seen to stand by it,” he said.
To read the entire post for more of Burnett’s observations and advice, click here.
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The Canadian Freelance Guild wants to help freelancers be better informed about indemnity clauses and contract literacy. If you have a contract from a publisher that you’re willing to share, please send it to CFG Organizer Don Genova at organizer@canadianfreelanceguild.ca. Your name and identifying details will be redacted.
If you have questions about one of your contracts, keep in mind that one of the benefits of membership in CFG is advice on contracts and negotiating them. And check out this page on the CFG website for more information.
