How news publications put their legal risk on freelancers

April 28, 2021

Two years before reporting on Harvey Weinstein’s serial abuse spawned the global #MeToo movement, Michael Balter, a science journalist, was already covering issues of sexual misconduct in the sciences. He’s pursued several dozen investigations into sexual harassment at major scientific institutions, published in Science magazine, The Verge, and his own blog, where he works for no pay. (He detailed his reasons for shifting his #MeToo reporting to his blog for CJR in 2019.) In June 2020, Danielle Kurin, an archaeologist at the University of California, Santa Barbara, sued Balter for defamation after he published a series of blog posts about allegations of Title IX violations and sexual misconduct against her and her former husband, respectively. She’s asking for $18 million in damages.

Balter (who is a friend and a colleague) has no libel insurance, despite the contentious nature of his work. This is not for lack of trying. His application for specialized media insurance through the Authors Guild was declined due to the controversial content of his reporting. Balter is being represented pro bono by lawyers and has the backing of the Reporters Committee for Freedom of the Press and the Committee to Protect Journalists. Still, at seventy-three years old, he stands to lose his home and savings.

Balter’s case, whatever its outcome may be, could add to freelancers’ hesitancy in taking on investigative work, if they feel unsupported by their publication. And there is a wider trend in the news media industry of publications pawning the risk of reporting off on freelancers—while denying them the protections they need to be able to assume that risk. At the same time, freelancers compose a significant proportion of journalists. In the UK, 42 percent of journalists were freelancers in 2019. It’s harder to determine the number of journalists working on a freelance basis in the US, but the Bureau of Labor Statistics counted around eighty-three thousand self-employed writers and authors in 2019––potentially outnumbering staff journalists, of whom the BLS counted fifty-two thousand. And in both countries, the freelance sector is growing, accelerated, in part, by pandemic-related budget cuts and layoffs.

The National Writers Union is conducting a survey of a half dozen American magazines to gauge what share of them is written by freelancers––including the nebulous category of full-time freelancer, or “permalancer,” the media industry’s answer to the gig worker. The data aren’t all in yet, but preliminary findings show that, at least for some of these magazines, freelancers write most of the content, says David Hill, the union’s vice president.

For freelancers––who are often conducting the investigative work of staff writers, but without the salary or benefits––taking out libel insurance can cost upwards of tens of thousands of dollars, if the insurer considers the content of their reporting contentious. And that’s if their applications are accepted, which is far from a given. High premiums, according to Chad Milton, a Kansas City–based media risk consultant, reflect the risk level of freelance journalism. A 2015 survey of Freelance Investigative Reporters and Editors (fire) members found that, “Over the past decade… publishers and broadcasters have increasingly required freelance reporters to cover their own court costs, and sometimes those of their publishers and broadcasters.”

This is precisely what happened to Dolia Estevez, who was sued for defamation in New York in connection with her 2013 reporting on corruption in Mexico for Forbes. The news site told Estevez that it would not contribute to her defense, as it would have had she been a staff writer. Forbes invoked a provision in its standard freelance contract stating that Web writers are “responsible for any legal claims arising” from their work. It did not ask her to foot its own legal bill, says international media law expert Charles Glasser, who represented Estevez pro bono––but it could have.

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According to the indemnity clause in her contract, Forbes would’ve had the right to hold Estevez responsible for any damages and costs the news organization was ultimately asked to pay. Even if the suit is thrown out and no damages are incurred, there are still legal costs that the writer must bear and that affect their future insurability. A nuisance suit is just that. It has no legal merit. And yet it could still do serious damage to a freelancer.

The case against Estevez was dismissed because the story was accurate. As Glasser puts it, “Good journalism is the best legal defense.” But he adds that this “creepy” business model, which has emerged over the past decade, is partly an effect of Section 230 of the 1996 Communications Decency Act. Section 230 essentially protects “interactive computer services”––typically apps or websites––from lawsuits arising from content posted to them by third parties. And while some see Section 230 as “the internet’s most important law” for its protection of free speech online––on social media platforms, for example––media organizations have shown a willingness to invoke the law to shield themselves from risk for their Web content, leaving the freelancers who often provide that content legally exposed and alone.

The Communications Decency Act is US legislation, but because the news industry and the internet are global, its effects are far-reaching. I’m based in Paris, and I have been asked to sign contracts that would require me to indemnify my client for any legal action arising from my writing––as one contract with the Oxford University Press recently required me to do, in relation to a chapter I had been invited to contribute to a book. These clauses are so common, in fact, that when I proposed this story to CJR, the editors initially sent me a contract including a similar liability clause. (When I pointed this out, they modified the wording so that we now share the risk; they assure me that the wording will stay changed going forward.)

Many freelancers have found themselves in the same situation, and have had mixed luck in removing or modifying the indemnity clause. (The OUP declined to do either, and I declined to sign; it was a relatively easy decision since they weren’t offering to pay me, either.) Last year, testifying to the UK’s House of Lords, freelance journalists Francesca Marchese and Phil Sutcliffe warned that this practice, currently allowed under UK law, overturns a long-standing tradition whereby a media company’s insurance covers freelance work.

In 2015, fire estimated that, in the previous five years, between five hundred and one thousand public interest stories had failed to reach the public because of constraints on freelancers. “The fear of libel costs can have a chilling effect on freelancers with no legal protection,” Estevez told me, “withholding us from publishing public-interest sensitive stories on corruption.” Balter describes himself as an “accidental” #MeToo reporter; he means that once he had established a reputation in that domain, alleged victims of sexual harassment started contacting him with their stories, which he felt morally obliged to investigate. Depending on the outcome of the lawsuit against him, he may no longer be able to do so.

In their 2019 study of journalistic precarity in Ireland, Kathryn Hayes and Henry Silke of the University of Limerick found that freelancers were roaming less far, geographically, and increasingly avoiding time-consuming or legally risky stories. The result was what you might call lamppost journalism––by analogy with lamppost science––where they found only what they could easily see.

Investigative journalism is slowly reinventing itself for the digital age. New models––including nonprofit, philanthropically funded organizations such as ProPublica in the US and the Bureau of Investigative Journalism in the UK––are emerging. But these bodies aren’t yet able to counter the lamppost effect. As Andrea Carson, a media professor, noted in 2019, local investigations are being sacrificed in favor of the national or transnational, and there’s less room for journalists to follow tips unless they are guaranteed to produce stories. Coverage is becoming patchier, in other words; the silences in public discourse are expanding. And that matters, as Hayes and Silke wrote, because “what is missing from the public discourse is often as important as what is included.”

Laura Spinney is a writer and science journalist. Her writing on science has appeared in The Guardian, The Economist, Nature and National Geographic, among others. Her bestselling non-fiction account of the 1918 influenza pandemic, Pale Rider: The Spanish Flu of 1918 and How it Changed the World (2017), has been translated into 20 languages.