Note from Jennifer: Thank you so much to everyone that participated in the 2017 Goal Setting Challenge. I am so happy for everyone (especially new readers/first time posters) that participated. Be sure the check the post since there was a number of discussions in the comments and it was very possible another reader added helpful advice to your goals. I am also happy to announce that Candy Arrington won the $50 Amazon gift card. Congratulations Candy! 

Over the past few months I have gotten a number of questions from readers about Indemnification Clauses, which seem to be showing up more and more in freelance content marketing contracts, especially with agencies. Contracts are not my forte so I asked my friend Kim Kavin, fellow freelance writer (check out her fantastic new book The Dog Merchants) and chair of the ASJA Contracts & Conflicts Committee to help me out. This is a very important issue for freelance writers to understand. I have been guilty in the past of not paying attention to contracts and one of my goals this year is to try to get clients to modify contracts that include indemnification clauses.

Jennifer: What are indemnification clauses?

Kim: An indemnification clause outlines who is responsible for paying lawyers, settlement fees, jury awards and other related expenses in the event that somebody sues a publication. Some indemnity clauses place the total legal burden on writers, meaning that the writers agree to “indemnify” the publication against such expenses. In some cases, these clauses kick in on the mere threat of a lawsuit, even an unjust one. Most of the time, the clauses are written by the publisher’s attorneys, whose job is to mitigate the publication’s exposure to risk.

Jennifer: Why should writers look out for these clauses?

Kim: In a nutshell, you could lose your life savings after writing a story for a $500 paycheck. If you agree to fully indemnify a publication against any possible legal threat under the sun, then even if you’ve done nothing wrong, you could still be required to pay (for your lawyers, the publication’s lawyers, jury awards and so forth).

Jennifer: Any particular wording or terms that are especially concerning for writers?

Kim: There’s a lot to look out for in these clauses, but one particularly worrisome bit of language is when the indemnity clause goes into force on the mere threat of legal action, as opposed to an actual legal breach. Basically, this means that somebody calling the publisher and threatening to sue—rightly or wrongly—entitles the publisher to hire lawyers of its choice, at the writer’s expense.

Jennifer: What alternate wording or changes can writers suggest?

Kim: In those cases, writers can insist that the clause only kick in should actual legal harm be proven in a court of law, by judgment sustained, after all appeals have been exhausted. The difference is that with the alternate language, the writer is only on the hook for the expenses if a judge rules in court that the writer breached the agreement, such as by committing libel.

Jennifer: Any other advice?

Kim: One other smart idea with indemnity clauses is to add the phrase “to the best of the writer’s knowledge” everywhere you can. For instance, if the clause states that the writer’s work does not infringe on any other party’s rights, insert “to the best of the writer’s knowledge” at the end of that sentence. After all, you have no idea what other contracts your sources (a third party) may have signed, so you have no way of knowing if you’re infringing on the source’s rights by publishing their quotes. You’ve done your job to the best of your knowledge, and that’s all you should be held accountable for should legal action arise.

As the head of the ASJA Contracts & Conflicts Committee, we see questions about indemnity clauses all the time. They have become one of the most challenging clauses that writers are facing when signing contracts with all kinds of publishers nowadays. We encourage ASJA members to take a look at the sample language for negotiation that is available to them on the ASJA website, as a benefit of membership. All of us are fighting this same battle, and understanding the battlefield is key to writers winning in the end.
Jennifer here! Thank you Kim for joining us today to explain this important and complex issue to us. We really appreciate it.

Readers, what has your experience been with indemnification questions? Do you have any questions for Kim?