Reporter Yashar Ali in August found himself in a difficult situation for any journalist, let alone a freelancer. He was hit by a lawsuit from Fox News host Eric Bolling seeking a whopping $50 million in damages. The suit followed a story by Ali in the HuffPost that alleged the television personality had texted unsolicited photos of male genitalia to at least three colleagues.
Ali stood by his story, and so did HuffPost. Shortly after it ran, Fox suspended Bolling, and in September, the network announced he would be leaving the network “amicably.”
For Ali, the legal costs of defending such a case could have been substantial even if Bolling lost the case. Bolling sued Ali directly and did not name HuffPost in the suit, which Ali’s attorney calls “a calculated effort to harass and intimidate Mr. Ali personally.” HuffPost Editor in Chief Lydia Polgreen promised to cover legal fees.
Not all freelancers are this fortunate. Some contracts indemnify news organizations against lawsuits, leaving the liability with contributors. Plus, public figures who want to intimidate the press through litigation have been emboldened by Gawker’s Hulk Hogan settlement. Given lawsuits can be part of the job in this media landscape, what should independent contractors do to protect their personal assets? Specialized liability insurance may be one of the best options, but the marketplace for these policies is small. Here’s a guide for what to look for in these policies—and how to find them in the first place.
Why journalists may need specialized insurance
Do not make the mistake of buying a basic general liability policy online, without considering some intricacies of media law. It’s important to read the fine print and talk to a broker on the phone before handing over the premium. For example, the clauses you’ll find in commercial general liability policies may cover damages related to libel and slander charges, but only in a specific context: The offending content must have been published in materials you use to advertise your services as a business owner. These policies typically do not cover defamation charges stemming from your core product: news content that’s published or broadcast by a media outlet.
Just like an editor keeps a red pen in their hand, read the contract with a red pen in your hand, and circle anything that doesn’t make sense or isn’t clear.
“Just like an editor keeps a red pen in their hand, read the contract with a red pen in your hand, and circle anything that doesn’t make sense or isn’t clear,” says Lynne McChristian, a spokeswoman for the Insurance Information Institute. “I know a lot of people don’t read their policies because they look like they’re complex. The fact is, they’re not complex. They’re just long.”
So what should you look for? Freelancers should seek out media liability policies that include the following protections:
Media-specific charges: Just as doctors require specialized policies to cover malpractice claims, journalists need their insurance to cover claims arising from newsgathering and publishing activities. These charges include defamation, invasion of privacy, infringement of copyright or trademark, and errors and omissions. The invasion of privacy area is a particularly important one, since journalists can be sued before a story is even published—for example, if they step onto someone’s property during the reporting process, says Louis Scimecca, a product manager at Axis Pro, one of the few insurers that writes policies for independent journalists and authors. He urges freelancers to make sure their policies not only cover errors, libel, and slander, but also newsgathering torts like eavesdropping, wrongful entry, or detention.
Defense costs: In media cases, the most expensive costs often come from legal fees to defend a reporter—not the ultimate settlement or damages. “Most lawsuits don’t go all the way to trial, and many lawsuits including libel lawsuits are frivolous and without merit,” says Mark Fowler, a writer-turned-media lawyer for Satterlee Stephens in New York. “The real cost is not the ultimate judgment, but the cost of paying a lawyer to defend it.”
Of every $1 insurers pay out on media claims, typically 75 cents goes to defense costs, says Michelle Worrall Tilton, principal of Media Risk Consultants in Shawnee Mission, Kansas, who has specialized in media liability insurance for more than 30 years, just like her father before her. “Make sure the insurer doesn’t blink when the defense counsel is at $300 to $400 an hour, or even higher,” she says. “I’ve seen too many strange claims. Even frivolous claims can give rise to significant defense costs just to get the case dismissed.”
Occurrence policy: There are two broad categories in insurance: occurrence policies and claims-made policies. The best policies are occurrence policies, meaning they will protect you from any covered incident that “occurs” during the policy period, even if a claim is filed years later. Claims-made policies, on the other hand, will only cover incidents in which both the occurrence and the claim happened during the coverage period.
Worldwide coverage: Have you ever heard of “libel tourism”? It’s when a person shops around and files a libel claim in a jurisdiction that tends to be more favorable to the plaintiff than other jurisdictions. Given most content is now published online and can be accessed worldwide, journalists should make sure their insurance offers worldwide protection, and is not limited to charges filed just in the United States.
No “hammer” clauses: Some professional liability insurance contracts include what’s known as a “hammer clause,” in which the insurer can compel the insured to settle a claim. In some cases, insurance companies may pressure their policyholders to settle as early as possible, just to avoid escalating defense costs. Journalists should be wary of these clauses, though, especially if you want your insurer to fully fight to clear your name.
“This is not commercial liability insurance where somebody trips and falls in front of your property, and you pay $10,000 to settle it,” Scimecca says. “You want to make sure you’re with a carrier that understands media law, particularly the First Amendment. If you as a freelancer get sued for defamation but you got the story right—you don’t want to make a settlement.”
The best media liability policies, Worrall Tilton says, include a clause that says the insurer cannot settle without the consent of the policyholder.
Who will defend you? Ask your insurance provider the following: Will you be able to choose your own lawyer, or will your choice of counsel be subject to the carrier’s approval? You probably don’t want an attorney who typically settles automobile accident suits, to defend your case. Know in advance that you’ll have access to experts in media law. They’ll understand details like shield laws, protecting you from revealing your sources during the defense process, and other specifics related to journalism.
The best policies are hard to find, and they’re not cheap
In theory, you could work with a broker to tailor a standard professional liability policy to meet your needs, McChristian says. A broker could add a series of clauses known in insurance-speak as “endorsements” to customize an otherwise basic policy to cover a reporter’s publishing activities. But practically speaking, this kind of customization is difficult to execute. If you call up your neighborhood insurance broker, it’s unlikely they’re going to know the ins and outs of media law. And they’re going to have difficulty finding an underwriter for such a specialized policy through their normal channels.
Instead, you may want to seek out a policy that’s already geared toward journalists. These are typically called media perils insurance or media professional liability policies.
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. Journalists can also become members of the Authors Guild for $125 a year, to receive a slight discount on policies from Axis Pro.
Note, with Hiscox, you may be tempted to buy a policy through the company’s easy-to-use website. However, Gyawu Mahama, a spokesman for the company, says in the case of independent freelancers, Hiscox’s media liability policies need to be purchased through a broker.
The same goes for Axis Pro. John Buttine Insurance in New York is one such broker. Worrall Tilton’s firm, Media Risk Consultants, also refers journalists to specialized brokers in their jurisdictions. “We have worked with small publishers, writers, and bloggers and have helped them obtain media liability insurance,” she says. “It isn’t easy. Many insurers do not want to write small accounts.”
Why insurance is necessary
Aside from insurance, freelancers can try a few other methods to protect themselves. Lloyd Jassin, a media and entertainment lawyer based in New York, recommends they cross out indemnity clauses, and when that’s not possible, try to negotiate with the publisher for a more favorable contract.
“It’s pretty difficult to get a publisher to scale back their representations, warranties, and indemnities clause, but I’d recommend trying to eliminate references to claims, allegations, and threats of breach by third parties,” he writes in an email. “The default language of most freelancer contracts allows the publisher to look to the writer for reimbursement if the publisher settles a claim or a lawsuit—notwithstanding the merits of the claim or lawsuit.”
It’s a tough thing as a freelancer, because the people who are writing your paychecks have a lot of leverage. The publications use their bargaining power to get as much protection as they can.
As a fallback, freelancers can also ask for a publisher to agree to split costs equally if they are sued, or name the freelancer as an additional insured member on the publisher’s policy. But having these conversations can be awkward, and in many cases, independent journalists are unlikely to have enough leverage in win these deals.
“It’s a tough thing as a freelancer, because the people who are writing your paychecks have a lot of leverage,” Fowler says. “The publications use their bargaining power to get as much protection as they can.”
As for LLCs, which some freelancers form to protect their personal assets—these legal structures do not necessarily offer adequate protection to reporters. “Since the employee of the LLC is, arguably an employee in name only, they can be sued for vicarious liability,” Jassin says. In other words, for a freelancer publishing under her own name, an LLC is “really just an alter-ego,” says Fowler.
Michelle Rafter, a freelance business journalist based in Portland, Oregon, has carried media perils insurance for the better part of her freelance career. She views the $1,200 annual premium as “the price of doing business, similar to what I pay an accountant to do my taxes.”
“Since I was responsible for managing writers, assigning stories, editing copy, etc., I felt like I needed the protection,” she writes in an email. “And because I am not incorporated, but am married and share financial assets with my spouse, I needed something that would shield those in the event I was sued.”