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Indemnity clauses leave freelancers open to lawsuits

Indemnification clause

From Poynter, Dawn Fallik and Jonathan Peters discuss the risks that face freelancers and independent contractors who sign contracts in which they indemnify the companies that engage with them for losses and liability arising from their work.  Dawn and Jonathan share the story of a freelancer who provided an article for Forbes but was left defending herself in a lawsuit.  They write:

Forbes contributor Dolia Estevez is on her own.

Two years ago, Estevez identified a former spokesperson for Mexican president Felipe Calderon as one of the “10 most corrupt Mexicans of 2013” in a story she wrote on the Forbes website.  The spokesperson sued Forbes and Estevez under New York law.

The claims were various: one for defamation, against Forbes and Estevez together; one for intentional infliction of emotional distress, against Estevez only; and two for interference with business relations, against Estevez only. The spokesperson demanded money damages.

Instead of defending its contributor, as it would have if she were a staff writer, Forbes told Estevez she was on her own, invoking provisions of its standard freelance contract stating that web writers are “responsible for any legal claims arising” from their work and that the writers must “indemnify Forbes and hold (it) harmless against any liability, cost or expense…incurred as a result of” their work.

Unsure what to do, Estevez reached out to Charles Glasser, a consultant and former global media counsel at Bloomberg News, and together they persuaded Ronald White, a litigator at the Morrison Foerster law firm, to take the case—which is ongoing.  Glasser and White are handling it pro bono, with the support of White’s firm.

“[Estevez] needed help,” Glasser said. “She was suddenly on her own, and the other side has aggressive, skilled lawyers—and we believe her story was accurate and that its posting was in the public interest.”

When contacted, Mia Carbonell, senior vice president of corporate communications at Forbes said in an email that, “Forbes’ counsel is cooperating with Ms. Estevez’s counsel in defending these claims against Ms. Estevez and Forbes Media LLC. Our joint motion to dismiss the complaint was filed with the court on April 16, 2015.”

(That they are “cooperating” and filed a joint motion does not mean that Forbes chose to defend Estevez and does not change the fact that Forbes could require Estevez to indemnify the company for any costs.)

Even if Estevez wins, the next journalist might not — in part because the next one might not be lucky enough to land a white-shoe legal team, pro bono.  And, regardless of its outcome, the case exemplifies a problem in the freelance market: the pervasive use of liability waivers and indemnity clauses.

Read the full story and the risks and dangers of indemnification clauses in Indemnity clauses leave freelancers open to lawsuits

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