Image: PexelsFreelance investigative journalists should seriously consider having insurance to protect against the risk of being sued.
“Media liability” policies are shields against the financial costs of litigation over libel, slander, defamation, invasion of privacy, plagiarism, copyright infringement and more. Insurance can cover potentially very large legal bills and monetary damages due to adverse court judgments or settlements.
The good news is that freelancers working for established publishers are often covered by the publisher’s policy. If the publisher claims to have your back, great. But even with such assurances, there are potential pitfalls. We’ll get into those below.
If the publisher’s umbrella isn’t open, however, getting your own policy may be advisable — some might say essential.
Discounted policies are available to investigative journalists through a handful of media organizations (described below), and their coverage is limited.
This GIJN resource delves into both scenarios: coverage through publishers and self-insurance.
In selecting your own media liability insurance, there are many confusing options. The right answers will vary with specific circumstances and what you can afford.
The availability of media insurance, and the need for it, varies around the world. Anecdotal information suggests that both freelancers and media groups in many countries go without media liability insurance.
However, sometimes different types of protections come into play. Media organizations that co-publish with larger organizations may be covered by their policies. Lawyers who provide advice to reporters may back it up by promising free defense if a suit is brought.
While much of the information below concerns North America, there is some universality in the thinking of insurance companies.
Perhaps the best insurance — and this is international guidance — is to understand the kinds of things that can get you in trouble in the first place.
Protection for Media Organizations
Independent investigative news outlets need media liability insurance, too.
For both freelancers and organizations, there are many similar things to watch out for in buying media liability insurance.
Because insurers are wary of investigative journalism, media organizations need strategies to address these concerns.
The choices for organizations in many ways parallel those facing individuals, so we have intertwined the subjects here.
Publishers May Provide Coverage
For freelancers, the good news is that many publishers’ policies apply.
It seems that covering contractors, including freelancers, isn’t all that expensive for publishers, according to brokers and insurance company officials interviewed by GIJN.
Also, protecting freelancers is not entirely altruistic. Doing so reduces the unwelcome possibility that a financially exposed freelancer will work with the other side in a lawsuit.
Coverage may be discretionary with the publisher on an individual basis. Some policies require the publisher to make that choice when a contractor is hired; others allow the determination when a claim arises. Some even ask freelancers to agree to a token level of liability to assure “skin in the game.”
So even if an editor promises legal protection, ask questions. Inquire about the timing and extent of coverage and if you have any exposure. Ask for a copy of the policy — or at least, the relevant provisions.
If an editor says you’re covered, it’s better to get such a promise in an e-mail, or as a clause in the contract.
Your liability may come up — not necessarily in a good way — during contract negotiations. Some publishers seek clauses to indemnify themselves. Negotiation may be possible.
Negotiating Waiver and Indemnity Clauses
Some publishers seek to pass off risks to freelancers, and some freelancers push back.
Increasingly, publishers want “waiver” clauses to hold them harmless in the event of litigation over an article and “indemnification” clauses to require authors to share the burden of litigation. Such clauses may be dangerous. Some journalists refuse to sign them. Others negotiate.
The reason for concern is pretty obvious: Few freelancers can afford expensive litigation, much less punitive damage awards.
Freelancers argue that the publisher who contracted for the article and approved it should shoulder the risk.
For journalists writing non-controversial articles, signing contracts containing waiver and indemnification clauses may not be too risky. But for investigative journalists, the potential financial exposure can be menacing. GIJN consulted journalists, lawyers, and insurance experts, consolidating their advice below.
Objecting May Work
Some writers have simply refused to sign contracts with such restrictive clauses and prevailed.
“While it can be uncomfortable asking an editor to change a clause, there’s no harm in doing so, as long as you’re reasonable and polite,” wrote Sara Tatelman in 2018 on the Canadian site Story Board, a publication founded by the Canadian Media Guild and the Canadian Writers Group to create an online community for independent journalists and freelancers across Canada. It is now a publication of the Canadian Freelance Guild.
Some writers can be put off by dealing with nervous editors and leave to find more confident ones. One was science writer Lesley Evans Ogden, who recounted her experience in the Story Board article Indemnity Clauses – the Rickety Bridges of Freelancing.
Negotiating to Limit Damage
Negotiating modifications to provide more security is feasible.
“Don’t be afraid to ask for the terms to be changed in your favor (and you should never be bullied into agreeing to a liability term you’re not comfortable with),” wrote Michelle Guillemard in a Health Writer Hub post.
Again, this may relate to the publisher’s insurance policy, so ask about that.
GIJN interviewed lawyers, journalists, and insurance experts about what to negotiate. Here is GIJN’s consolidated list of their advice:
- Counter-propose with a cap on your liability. (They probably can’t realistically expect to squeeze you for much anyway, but a cap still could help.)
- Limit the coverage of the provision to final judgments, with a caveat saying that you will be affected only after liability is established and all appeals exhausted.
- If, as is sometimes the case, the contract language asks that the writer warrant that it contains nothing libelous or defamatory, ask to include qualifiers such as “to the best of my knowledge.”
- Limit your liability to what you wrote, not to what an editor did, essentially indemnifying you for their mistakes. This is called “cross indemnity.”
Good advice on negotiations, and more about indemnity clauses, can be found here:
- How to Deal with Warranty and Indemnification Clauses by Pat McNees, Writers and Editors blog, updated 2015.
- Liability: How to Limit Yours by Kendall Powell, National Association of Science Writers, 2009.
- Three Clauses Freelancers Should Know (and Negotiate), According to Lawyers by Maya Kroth, Columbia Journalism Review, 2018.
- What Exactly Is Indemnification, and How Does It Affect a Freelance Contributor? by Art Neill, Forbes, 2018.
- Media Lawyer Advises Freelancers to Beware of Indemnity Clauses on Story Board, 2018.
- Indemnity Clauses Leave Freelancers Open to Lawsuits by Dawn Fallik and Jonathan Peters, Poynter, 2015.
- The Rise of Indemnification Clauses in Freelance Contracts by Sara Tatelman, Story Board, 2018.
Get Media Liability Insurance
For self-published work, freelancers may want to obtain their own media liability insurance.
The complexity of the issues makes it advisable, especially for media organizations, to engage professional help.
Insurance “brokers” are typically involved to help find the appropriate policy. (They generally get a fee from the insurance company.)
Brokers can help you define your needs. Brokers serve as an intermediary, getting quotes from the insurance providers and providing guidance on the best choice.
For another overview on what to look for and where to buy insurance, see this 2017 Columbia Journalism Review article entitled I Am a Freelance Journalist. Do I Need to Buy Liability Insurance? by Annalyn Kurtz, a freelance business writer and editor based in New York.
Expect an Application
To obtain a policy, you’ll be asked to fill out an application.
Insurers will want to know a lot about you. They likely will ask about your work, if you have been sued, what you do to ensure editorial quality, your finances, and more.
Similar but more in-depth inquiries are put to media organizations applying for insurance. (More on that later.)
Your answers will inform the insurer’s calculation about their potential risk exposure. This determination influences their policy offer, especially for the “premium” (i.e., what you pay).
Shopping for liability insurance can pose challenging judgment calls beyond just the premium.
There’s also the level of the “retention fee” (what the insurer doesn’t pay on a claim), also called a deductible. This is a key factor affecting your rate.
Another important consideration is the overall liability cap (the most the insurer will pay), usually above one million dollars, but often higher. Higher levels will affect the premium.
There are many other things to consider, such as:
- What perils are covered? The list can seem scarily long — errors, libel, slander, eavesdropping, wrongful entry, detention, invasion of privacy, etc. — but is it complete?
- What isn’t covered? Typical “exclusions” are for things such as criminal acts and antitrust law violations, but the list is worth a thorough examination.
- Are all forms of publication covered, such as podcasts?
- Will you be covered if sued abroad?
- Who decides whether to accept a settlement? (A “hammer clause” can let the insurance company force you to settle.)
- Does the policy cover punitive damages?
- Are you covered for claims filed against you, not only during the period of policy, but also for charges brought against you for something that happened before the policy period (an occurrence policy)?
- Will legal defense costs be deducted from the policy limit?
- Can you select your own legal counsel?
- Are there limits on the hourly legal fee?
- Is the policy underwriter financially secure?
- Does the policy cover pre-publication litigation, such as fighting subpoenas or defending against attempts to prevent publication?
- Some insurers require that you hire a lawyer to assess your chances of being sued and write an opinion letter to the insurer before it will underwrite a policy. The costs of this can be quite substantial.
- When can a policy be canceled?
Buying Insurance as an IJ Organization
Investigative journalism “can be scary” to insurers, said one expert consulted by GIJN. “It’s not so much if they are going to get sued; it’s when they are going to get sued,” an insurance company executive said.
Because of the potential losses for the insurer, investigative journalism organizations can expect to be closely vetted by brokers and/or prospective insurers.
In response to an inquiry, one insurance company wrote:
“What we will need to move forward in an evaluation is as follows:
- A brief description of your organization’s structure, backing, and its approach to journalism.
- A copy of your latest audited financial statements.
- A copy of your editorial guideline.
- A copy of your litigation management/legal billing guidelines.”
Brokers, insurance company executives, and others stress that applicants for insurance need to carefully address insurers’ worries. Among their suggestions:
- Be judicious about describing your work and your goals. Limit boasting.
- Address the training of the journalist and their experience.
- Discuss whether you will be using high-risk investigative techniques, such as undercover work, and under what controls.
- Describe the editorial review process, especially your policies on fact-checking.
- Explain your procedures for consulting in-house or external legal advice.
- Have strong, high-quality media liability lawyers to consult, preferably with litigation experience.
- Tell complete and candid stories about past litigation.
One clause that may be of particular concern for investigative media organizations concerns who can settle suits. This is a point of conflict when insurers think it is better to cut their losses and journalists feel strongly about fighting back against their accusers. So-called “hammer clauses” give the insurance company the upper-hand on such decisions, but they can often be avoided, experts said, or the terms of such clauses can be negotiated. Variations, for example, may say that if a settlement is rejected, the insured will pay a portion of the litigation costs above a certain level.
Media Groups Offering Individual Liability Insurance
Journalism professional organizations sometimes seek to help their members by establishing relationships with insurance providers. For independent news organizations in North America, the Institute for Nonprofit News aims to help its member organizations with media liability. INN has established relationships with multiple insurance providers, offers one-hour free consultations with an insurance adviser, and offers tipsheets and training on the topic. See more details here.
For freelancers, there are a few similar offerings but not necessarily sensitive to investigative journalism needs.
Members of The Authors Guild, mainly US book authors, are eligible to join a specially-negotiated group plan and receive media liability insurance at a “significant discount” through AXIS PRO, a Kansas City, Missouri, insurance company. The Authors Guild dues in 2020 are $135 annually ($100 for emerging writers). AXIS PRO will underwrite policies to cover claims of libel, invasion of privacy, copyright or trademark infringement, plagiarism, errors and omissions, and other related risks.
The National Federation of Press Women in the US offers its members a discounted policy through Walterry Insurance Brokers and Chubb Specialty Insurance. Its “state-of-the-art media liability coverage” costs $495 per year.
Major US media liability carriers are AXIS PRO, AIG, CapSpecialty, Chubb, CNN, Hiscox, Mutual Insurance Company Ltd. (Bermuda), OneBeacon, Philadelphia, and QBE.
Cost Testing Provides General Range
Providing even rough costs estimates may be misleading; experts stress that costs will vary because of many variables, such as the insured’s work and particulars of the policy. For media organizations, the costs can vary widely, mainly depending on output and the kind of journalism. For a small media groups in the US, the minimum annual premium would be $2,500 in early 2020, according to insurance brokers and industry experts.
Freelancers’ costs seem to run under $1,000, based on testimony on the subject from the US, Canada, and Australia. Annalyn Kurtz explained in her 2017 CJR article that she found costs varied:
Two of the largest providers of media liability insurance include Axis Pro and Hiscox, both of which are willing to write policies for independent journalists in certain cases. When I filled out an application, quotes from Axis Pro ranged from a $718 annual premium for $250,000 in coverage to $1,049 for $1 million in coverage.
Matt Knight, a freelance writer and intellectual property lawyer, reported in 2018 that premiums can run anywhere from $1,000-$2,500 per year, with deductibles in the $3,000-$5,000 range.
The Canadian Media Guild policies noted above list a C$300 annual premium for $100,000 CAD of protection for errors and omissions, and up to C$850 for C$1 million worth of the coverage, but the policies don’t cover investigative journalism. A spokesperson for the provider, the Beazley Group, said rates would vary depending on individual circumstances.
Michelle Guillemard, in a Health Writer Hub post updated in 2020, reported that indemnity insurance policies in Australia run about A$1,000 (approximately US$700) per year.