Equal promises: What could go wrong?
One twist on indemnification: Sometimes a contract seems to frame it as a two-way street, a mutually reciprocal arrangment, which sounds perfectly fair—but often isn’t.
In any indemnification arrangement, the outlet pledges to protect a reporter from liability unless he or she breaches, or breaks a promise. So again, it’s important to make only realistic promises—e.g., not to plagiarize or commit knowing falsity. But it’s also important to check the indemnification language carefully to distinguish between three kinds:
- reporter indemnifying outlet (not acceptable)
- outlet indemnifying reporter (acceptable, in two forms)
- reporter and outlet indemnifying each other, the reciprocal arrangement, so-called “mutual indemnification” (sometimes acceptable).
The difference between an outlet protecting you, and the two parties protecting one another, is substantial: When an outlet indemnifies a reporter, it’s promising protection unless the reporter breaks their promise. In mutual indemnification, the outlet is saying that such a breach would not only forfeit the reporter’s legal protection, but also require the reporter to pay the outlet’s legal costs, with the outlet agreeing to the same if it breaks its own promise.
Obviously that’s not as helpful because you’re pledging to cover not only your own legal expenses but also your outlet’s. Still, it’s fair enough under two conditions:
- the mutual indemnification kicks in only on a freelancer’s breach;
- the freelancer makes a realistic promise, one that they’re effectively never going to breach, e.g., to uphold journalistic standards; to not plagiarize or commit “knowing falsity.”
However, there is also a less benign form of mutual indemnification. That one isn’t triggered by breaches—instead, it’s triggered simply by claims arising out of services performed by either party—essentially, for reporting on a story. That sounds equitable—since both sides agree to protect each other.
But in practice, it’s not equitable. Even if the outlet reciprocates by vowing the equivalent, FIRE would never recommend that a freelancer sign a contract that asks a freelancer to indemnify a publisher or broadcaster against claims arising out of anything like “services performed by Contractor.”
That’s like saying nothing will go wrong in the story and nobody will sue for any reason: In a legal action, it lets the outlet declare the reporter responsible by default unless the courts work it out otherwise.
Practically speaking, a court ruling might not end up including detail explicitly bearing on the reporter’s role, and the complaint might not even get to that stage. In either case, the freelancer is effectively unprotected. Nor is it much help to know the outlet agrees to the same provision:
- That would require the freelancer to pursue a claim against the outlet for her legal costs.
- It's hardly any fun to fight with your outlet.
- In the process, the conflict could also divide a defense against the claim (which of course doesn’t go away while you’re working out who’s at fault).
At best, such consequences could end up distracting you from the next reported story. Again, if your contract specifies mutual indemnification for breach of a realistic promise, that's fair enough; but if it's for the services performed, it's safer not to sign.