Over the course of my 10 years as a freelance writer, I’ve had several brushes with the law- specifically, in the form of letters and emails from lobbyist groups and lawyers asking me to cease and desist certain activities.
One such letter showed up in my mailbox after I’d written some unflattering comments about a certain sweetener. This lobbyist group figured it could sway my opinion with some carefully chosen brochures and other marketing collateral.
In another instance, an attorney retained by a university emailed me and asked that I cease and desist my blog post calling that particular school a scam.
While these two instances didn’t result in my being sued, they did heighten my awareness that my writing is in fact being read and scrutinized by an audience that includes lawyers.
More recently, Gawker was sued for $140 million, and actually bankrupted, for posting some rather unflattering footage of Terry Gene Bollea (aka Hulk Hogan). If a major publication can be taken down for publishing news that isn’t even libelous, you can bet that you too can be sued, bankrupted, or even imprisoned for your freelance work.
Litigation is a risk of freelancing
Freelancers the world over are at greater risk of professional and/or financial ruin anytime they take to the web or physical media and post something unflattering about another party or entity. Why?
Employed writers, graphic artists, programmers, etc. have their employer to defend them should the $#@ hit the fan. Corporations expect to be sued, and most keep a roster of lawyers handy for that eventuality.
Freelancers don’t expect their work to be noticed by entities such as corporations or institutions. They assume that only their niche audience will be interested in their work. Alternately, they sign contracts with publishers thinking that those publishers will take on the responsibility of defending their publications.
However, even if a major publisher is sued and has the capacity to defend itself in court, you the freelancer could still be personally sued and/or called in to participate in the trial. Also, the publisher could press you into paying some of its legal costs because you were the one who created the content in the first place.
How do you protect yourself from being sued?
Create and use an indemnity clause.
You should always create a signed contract for you and your clients prior to starting any kind of work with them. A contract protects you from many professional liabilities; it also underlines the scope of your work tasks. Best of all, freelance work contracts can be generated for free through sites like Docracy.
However, even a signed contract won’t help you if you don’t include something called an indemnity clause. Here is an example indemnity clause, courtesy of freelance journalist Barry Yeoman:
The Writer guarantees that the Article will not contain material that is consciously libelous or defamatory. In return, the Publisher agrees to provide and pay for counsel to defend the Writer in any litigation arising as a result of the Article.
Docracy offers additional indemnity clauses with its free contracts; however, you may just want to make the above statement your own because it explicitly states that you, the freelancer, will be helped out by your client in the event of a lawsuit.
You should also check the contract that your client gives you to sign for its own indemnity wording. Many client contracts will ask that you, the freelancer, help cover publisher litigation costs. You need to make this clause a contention point in your negotiations and have it removed.
Incorporate as an LLC.
One of the best ways you can protect your personal assets in the event that you are sued is to designate your freelance business as a limited liability company or LLC.
Why would you want to incorporate as an LLC? To begin with, not only does an LLC make your business look more official, it also separates your business from you. This is useful because litigation can only be brought to your business, not to you personally. As a result, your house, car and savings accounts can’t be touched for any kind of punitive payout.
In contrast, operating your business as a sole proprietorship (i.e., you are your business) means that if you lose a lawsuit, you must pay out damages from all your assets. Those assets could include your business and your house, car, personal savings, etc. It’s easy to see how people could be completely bankrupted from such a lawsuit.
Purchase professional liability insurance.
If you work in a high-risk field like freelance journalism, you could purchase liability insurance. The bare-bones liability insurance package that the Freelancers Union has recommended is better than nothing, but it doesn’t cover all cases of litigation.
Consider these individual liabilities and whether your insurance package covers them:
- Errors and omissions or E&O
- Civil defamation (punished by fines)
- Criminal defamation (punished by jail time)
Insureon offers in-depth coverage for freelancers in various fields and is worthy of a look. Hiscox is another possibility.
Litigation and freelancing
Many freelancers shy away from thinking about litigation because they view their freelancing activities as a side hustle. However, if you charge even one client for a service that you provide, you are indeed a business. As such, you need to take steps to protect yourself and your assets.