Risk management is at the heart of an indie newsroom’s search for liability and media insurance.
All news organizations can reduce their risk by taking action on a few fronts, said Andrew Sellars, Staff Attorney for the Digital Media Law Project for the Online Media Legal Network at the Berkman Center for Internet and Society at Harvard University.
First, develop an internal policy related to content liability.
“For starters, the organization should develop a correction and retraction policy,” Sellars wrote in an email. “This policy should be developed in light of the law of the organization’s state; some states have a retraction statute which requires a would-be defamation plaintiff to demand retraction before bringing a defamation action.”
In addition, “Developing other internal guidelines and rules regarding sourcing and good journalism practices shows a responsibility which will lead to fewer errors (and thus fewer legal risks), and also establish a low degree of fault in publication, which can be vital to winning a defamation claim,” Sellars wrote.
Online publications face two universal risks, Sellars said.
2) A website can develop a copyright takedown policy and register a copyright agent with the U.S. Copyright Office, allowing it to take advantage of a statutory safe-harbor protecting against many forms of third-party copyright liability (often called a “DMCA Agent,” after the Digital Millennium Copyright Act). This is well worth the small administrative cost, Sellars said. The Digital media Law Project has a section on how to protect your site.
“As to whether to get insurance and how large a policy to get, it’s entirely an organization-by-organization assessment,” Sellars wrote.
“Monetary risks vary greatly, and largely depend on developing an estimate of how often you expect to get sued. This is a calculation which includes how large or high-profile the organization, whether the organization’s reporting is done in an area that is likely to attract legal response (such as investigative work concerning wealthy individuals), and the revenues and resources of the organization. While most lawsuits are handled outside of court, bear in mind that a successful defamation claim can amount to damages of several million dollars, and even frivolous lawsuits can be costly to dismiss.”
Sellars pointed to the Center’s legal guide for direction on media liability policies . These include group policies with media organizations, and a wide array of insurers developing policies for smaller-scale media organizations.
Sellars added that while only the organization and its insurance broker can decide what policy is appropriate, “the Berkman Center’s Online Media Legal Network is happy to help news organizations find an attorney to vet a specimen policy.”
Assistance from the Online Media Legal Network at Berkman can make an indie newsroom’s quest for insurance much more affordable, said Kevin Davis, CEO of the Investigative News Network, Los Angeles.
“Legal counsel can be more time consuming than expensive,” Davis said.
The Investigative News Network recently used an RFI process to put together a group offering for its members. INN identified ThinkRisk as the underwriter. But rigorous insurance regulation means an organization must work with a broker, Davis said. For that, INN identified White and Company in Santa Monica.
The short form application for INN members is about eight pages long vs. the usual 20 pages, Davis said.
“We don’t maintain that it is the best or the cheapest,” he said. But “collectively the INN insurance has saved about $150,000 in hard dollar premiums per year” for the twelve organizations that have signed up to date.
Indie newsrooms starting their search can Google the terms “liability and media insurance,” Davis said. But that’s just a beginning.
Small organizations that are unproven and haven’t had the legal counsel can encounter barriers when they seek insurance. It’s important to highlight your assets: Your track record and your professionalism.
“Do your research. Talk to a number of organizations.” Davis said. And finally “Do your homework upfront about knowing what you are looking for to reduce the hemming and hawing. … You don’t want them to think of you as a “blogger.”
“So much of the way you approach these things has to do what you wind up paying,” he said.
In other words appearance is everything. And so is your fiscal reality.
Because your financial position has everything to do with your ability to get insurance, working through an association can be a benefit.
“The good news is that INN has now had this program in place for a year,” Davis said. “We are looking to expand our offerings.”
Nonprofit indie newsrooms can talk with Davis about joining the INN group coverage, and Davis is happy to introduce for-profit newsrooms to his broker as well.
But Davis recommends that the indie community news world pull together and create pooled insurance of its own. He’s happy to help with that process as well.