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Monday, August 07, 2006

Lawsuit protection for freelance writers...A few ideas...

This post is directed more to writers than to content buyers. However, those who do purchase content might be interested, as it should have some impact on how they handle the buying process...

Last year, you wrote a few articles for a health supplement company. As per their request, the articles were favorable in tone and extolled the virtues of Product X.

Today, a process server is knocking on your door. You are being sued! Apparently, Bob Kuzdemer read your articles, was attracted to Product X because of them. He used it and has developed a series of disabling medical conditions as a result.

But wait...That's not all...

The same process server also hands over a second set of documents. You wrote this great article a few months ago about how to install a rustic-looking kitchen sink antique tin backsplash. You didn't mention just how sharp that cut tin could get or that someone might want to use gloves. Mary Wreeder is missing two fingers and blames you.

Deep breath. The one thing you know for sure is that anyone can sue anyone else for anything. The question is always whether they can actually win--and if the sued party can afford a defense. These claims must be baseless, right?

Maybe, maybe not. I am not an attorney (I bailed out on that pursuit just in the nick of time) and don't pretend to be one, either. Nothing in this blog post should be construed as legal advice of any kind. Nothing. Re-read this paragraph before you decide to use it as a basis for any action of any sort.

Now, re-read it again.

Okay, so you may or may not be in trouble. It could depend on a few things. First, whether your articles were really misleading, inaccurate, etc. Second, the nature of your contract.

We're going to leave the matter of whether your content was a proximate cause of injury alone for a moment. That appears to be a fact-based determination guided by any number of potential legal precedents, etc.

Your contract is a different story. If you are like most online content writers, your immediate reaction is probably, "What contract? I didn't get a contract." Even if you did, you are probably going to be disappointed. Why? Because most publisher contracts include an indemnification clause. When you agree to write for pay, you sign off on liability for any damages arising from the content you provide. That's right, it falls on your shoulders.

That fact, combined with a legal tradition that tends to lean toward holding publishers harmless probably puts you in a tough situation even if you didn't have a contract. There are exceptions to the "publisher's free ride," and many of those exceptions would apparently manifest in most online content situations. However, even if some sort of shared liability were to develop, there is no reason to believe that you, as a writer, would be completely off the hook if disaster should strike.

Admittedly, these scenarios may seem a little far-fetched. Kuzdemer is more likely to go after the makers of Product X for producing such a crummy supplement. Wreeder is more likely to attack the tin manufacturer or the tin snip producer than to try to milk you dry, if the idea of suing you even crosses her mind.

However, it is possible and defending oneself against disaster can make a lot of sense when the stakes get too high.

So, what can you do?

Insure yourself. Buy liability insurance. That might not fit into your budget right away, but in the long run it may make sense. That's especially true if you work in an area where your work could have the kind of consequences that tend to produce litigation (i.e. medical subjects).

Write carefully. If it isn't true, don't write it. If it may not be true, mention that. If you are called upon to write compelling and slanted prose, find a way to accentuate the positive without any misrepresentation. If you are offering advice, make sure it's damn good advice. Include a paragraph in your work indicating that readers should consult with an appropriate expert--an inline disclaimer, of sorts. Don't be libelous. Write sufficiently comprehensive work that is factually accurate.

Negotiate terms. Here's an example. Today, I wrote an email to someone looking for a writer to work on a project involving various financial topics. I replied with my rate and all of the other expected information, but also indicated that I would expect the buyer to accept my "work for hire" content contingent upon a release of liability for any claims emerging from the work. I don't need Wreeder's and Kuzdemer's neighbors going after me when a recommended investment plan turns out to be a dog. In the traditional publishing world, you might be stuck with the onerous indemnification clause. As a freelance online content writer, you have more flexibility in terms of negotiation. Use it.

Incorporate. You may be able to protect personal assets in the case of a lawsuit if you are incorporated. However, it appears as though the completely foolproof "corporate shield" is harder to create than one might think. Just hopping through the necessary hoops to get an "Inc." behind your name isn't necessarily enough to create a tough-to-pierce barrier. Incorporation also leaves your business at risk, even if it does protect you. Incorporating can help in some cases, and it can have other advantages, but it certainly isn't perfect protection against litigation.

Optimally, one would manage to use all four elements in order to provide maximum security, I suppose.

What does all of this mean to content buyers? First, buyers should recognize that if the topic area under consideration brings with it a substantial risk, they should be prepared to provide adequate compensation for research time and quality assurance. If you want me to extoll the virtues of your high blood pressure solution, you need to give me time to do it in a way that will cover my backside.

Buyers should also understand that being reasonable in terms of indemnification and liability can be helpful to all involved. Accepting responsibility for the nature of the content allows online writers to avoid high insurance costs, which is one of the reasons why they can provide materials at a competitive rate.

A failure to agree to reasonable indemnification terms could convince many quality writers they should look for another job. Buyers should also recognize that they have the "last look" at all content before using it and that they can always insist on proper editing and changes to reduce the risk of litigation.

Buyers should also realize that if these issues are raised, they have probably found a professional who is interested in doing a good job and who takes his or her work seriously. If you buy content, consider questions on these topics to be a good sign.

Remember, I am not an attorney. I do not play an attorney on television, radio or stage. Anything smacking even remotely of legal advice should be discussed with a high-quality, practicing attorney. This blog post does not constitute an attempt to persuade anyone to pursue a particular course of action and instead seeks merely to raise the issue of writer liability for comment and consideration.

I'd be interested to know what other buyers and writers think about the liability issue, so feel free to comment.

Oh, and I hope you don't get sued today.

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