See you in court?
Do freelances need to take out libel cover? wonders Simon Creasey
B
usiness may be booming for messrs Sue, Grabbit & Runne at the moment and some of the richest pickings for the fictitious law firm regularly name-checked by Private Eye is being provided by journalists.
There have been a number of high-profile libel cases in the US. Sabrina Rubin Erdely, the freelance writer behind Rolling Stone’s rape on campus scandal, is being sued for millions of dollars by a several parties who were mentioned in her story. Fox News host Eric Boiling is suing freelance journalist Yashar Ali for $50 million over allegations that he sent lewd messages to female colleagues. This is not happening just in America. In the UK over the past couple of years, libel actions have been lodged against freelance journalists and bloggers, by a wide range of different claimants, including MPs. It begs the question: given how high the stakes are, should freelance writers consider taking out their own libel insurance cover? It’s difficult to be sure how many freelance journalists have libel cover. However, anecdotal evidence from media law experts suggests numbers are fairly low. I conducted a very quick and crude straw poll of a group of experienced freelance journalists. One writer, who does a lot of work for national newspapers, said: “I have all sorts of cover – professional indemnity and public liability – and I think libel is included too.” The others said they had no libel insurance cover and had never considered taking it out. “I don’t have it – mainly as I assume (almost certainly wrongly) the responsibility lies with the publication,” responded one freelance. Sadly his assumption – as he correctly guessed – is wrong.
Although the majority of reputable publishers would back a freelance who has undertaken a solid piece of reporting, unless you have a specific agreement in place with a publisher that relieves you of your legal liabilities, you are legally liable for the work you produce. So, if you make a mistake, you could be sued. “Usually in the UK, a libel action will be against the publisher and, if the freelance is named by the claimant in the writ, I guess the publisher will usually take the freelance under its wing as regards fighting the action or paying up to completely settle the action. Unless the freelance has so annoyed the publisher that he or she is left ‘swinging in the wind’ – for example, if the settlement deal excludes the
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freelancer who therefore remains in the firing line of the writ,” says one media law expert. Publishers are not obliged to offer legal or indeed libel insurance support to freelances and a lot of smaller publishing houses don’t take out libel insurance cover for their own staff as it can be costly. They might baulk at covering a publication’s own legal expenses – and any resulting financial settlement to the claimant – in addition to those of a freelance.
Of course the best form of defence to any libel action is
to do your job properly in the first place. As a media lawyer for one of the UK’s leading law firms says: “If you act responsibly – ie you check your facts and get your comments from trusted sources – you can protect yourself to a very large extent.” Many freelance journalists report on subjects where the
chances of someone pursuing them for libel is extremely low so in all likelihood they would never require insurance cover. As David Banks, a journalist and media law trainer who has
co-written editions of McNae’s Essential Law for Journalists, points out: “I think people only need it if they are publishing risky stories on a platform that does not take on the libel risk itself and indemnify them. It really does depend on the nature of their story whether they think they need it.” However, sometimes seemingly innocuous statements or
articles in obscure publications can come back to haunt people – and you can still be sued for libel even if your story is 100 per cent watertight. This is why Mark Hanna, a senior tutor at the University of Sheffield’s Department of Journalism Studies who has also co-written editions of McNae’s, thinks “freelances should insure themselves against all potential liabilities, and should check out what the NUJ offers its members in this respect”.
Do you need an insurance policy?
Firstly consider your potential exposure. If the bulk of your work is copywriting or straightforward feature writing for reputable contract publishing or business to business magazines, it’s highly unlikely that you will need libel insurance cover – although there are exceptions. The libel risk would be relatively low and most publishers would step in to defend reporters where there is a defensible case. However, if you’re an
investigative reporter, or you work for national newspapers or popular websites, it might be worth buying cover. Another issue to
consider is contracts. Some may stipulate you need professional indemnity, public liability and libel insurance cover in place and, if you don’t, you could be in breach of contract. Journalists should also
consider what obligations – if any – they might have under the general data protection regulations, which come into force
next year, in terms of data breaches and notification. If you decide that you do
need cover, in addition to taking out a bespoke libel insurance policy for journalists, the best form of protection against the threat of libel action is abiding by the NUJ’s code of conduct and producing work of a high professional standard. As a media lawyer for a
large UK firm points out: “If you write something that you know is untrue, then your insurers will walk away. However, if you write something in good faith that’s been well reported, then your insurers will step up and defend the allegation.”
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