Liable to lose your shirt

THE MARCH Branch meeting heard from Freelance Organiser John Toner about "liability clauses" in the contracts we're offered. They come in two flavours: "warranties" and "indemnities".

Warranties usually ask the freelance to undertake that their work does not infringe the law on libel, blasphemy, obscenity and breach of copyright. One might think that ensuring this was the publisher's, the sub-editors' or even the editor's job. But BBC Worldwide and Penguin both say "we can never be sure whether the freelance has plagiarised" which is true. They ought, though, to be able to tell what's blasphemous.

Indemnities take things further: they ask the freelance to cover all legal costs, damages and other penalties if they breach the warranty. "If you're paid £250 a thousand words it seems a bit much," John said, "to expect you to take responsibility for thousands of pounds in damages and leaving the company to walk away - when in law they are responsible for what they publish."

Both practices, however, have been foisted on book authors for a long time. The Society of Authors sighs that like the poor, "such contracts are always with us."

Companies that are trying to extend them to journalists may well say they've "never left a freelance in the lurch". But no such smiling assurance will overrule the contract - as John says, "it's not worth the paper it's not written on".

Like all-rights contracts these are "boilerplate" texts. A corporate lawyer somewhere has decided "this is the safest way to do it," often "borrowing" from quite unrelated documents. John knows of instances where freelances have argued and won much less onerous assurances - especially from smaller publishers without large legal departments. Companies have agreed to cover freelances from their insurance, or to replace strict warranties with an agreement that freelances will "take all reasonable care" to ensure their work is legal.

If that doesn't work, you could seek an agreement that publishers' lawyers will "legal" work before publication. It probably would be unreasonable to expect them to spot that you had, for example, plagiarised a postgraduate thesis on weapons of mass destruction.

Some contracts are now requiring evidence that the freelance holds Professional Indemnity Insurance. The NUJ  has always advised members not to get this, holding that it's the publisher's business. It can also be very expensive for individuals. John is now in discussion, though, with two insurance companies to explore affordable group coverage.

It is essential in any case that all journalists know the law - whether on libel, contempt of court or copyright. John mentioned the "very sad case" of a leading rock journalist who published a book in the belief that the warranty he had signed was safe and he had fulfilled it - but he had operated for decades not understanding copyright. Asked if had taken material from another book he replied "Yes, of course - you're allowed to do that - aren't you?" He now faces a bill for £20,000.

Member Jenny Vaughan raised the question of contracts that also waive your moral right to object to harmful changes to your work. She'd had a publisher change a book hugely. What  if they were plagiarising and sticking her name on it? And there was the book on mushrooms that could have left her responsible for illness or death... The warranty and indemnity, however, cover the work that you deliver.

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