Rule 4. Weigh Promises.

The promises you make can limit what you may legally publish and can subject you to legal risk.  So, it’s important to think twice before committing yourself — whether it’s a formal written agreement, or an e-mailed exchange, or a verbal pact.  Being beholden to sources, subjects, advertisers and others can also undermine your independence and credibility. 

You need to be clear on exactly what you’re promising, why you would sign off on it, possible limitations, and repercussions that could result.  Then consider whether you really ought to enter into a proposed agreement, negotiate for terms you can live with, or take a step back and consider other options.

If you’re going to blog or vlog or post about someone or some organization with which you have a contractual relationship, you need to consider what promises you’ve made, whether they restrict what you can say, and whether you have alternatives.

Problematic Promises

Promises to Subjects

While seeking an interview, you promise you’ll make some person or business or product look good or you promise to include or omit certain information when you write your story. 

As a citizen journalist, you don’t want to be beholden to your subjects or sources.  You want to be free to report things as you see them.  You need to recognize that you may approach a subject with one perspective and then find through additional research and fact-gathering that the story is different than what you had thought.  You don’t want any prior agreements to get in the way of reporting things fairly and honestly.  Plus, you don’t want to risk that if you change your mind and renege on some promise, you’ve set yourself up for some sort of breach of contract or misrepresentation breed of claim.

Confidentiality Agreements with Sources

Anonymous sources amplify legal risk.  In addition, when used carelessly, an anonymous source can undermine a news report, journalist and news organization’s accuracy and credibility.  However, confidential sources can be essential to stories when on-the-record sources with comparable access to information are unavailable.

In a nutshell, there are at least three areas of legal risk relating to confidential sources: 

1.  Confidentiality agreements with sources are enforceable contracts and journalists and news organizations can be sued for violating those agreements. 

Do not make any promises you cannot or will not keep. 

2.  If you are sued for libel and the information in question is from an anonymous source, that can be very damaging to your defense.  Imagine you’re trying to defend against a libel suit in connection with a story on municipal corruption.  The village manager’s lawyer has witnesses attesting to his client’s scrupulous business practices.  Now it’s your turn on the witness stand.  The lawyer asks you who could have possibly told you that this diligent, hard-working, honest village manager received kickbacks.  Your response: “A reliable source.”  The lawyer asks you, for the benefit of the jury, to share the name or qualifications of this “supposed source.”  Your reply:  “I’m sorry, but it’s confidential.”  Not too convincing, at least when it comes to your side of the case.

Do not rely upon information from an anonymous source as the sole source of information potentially damaging to the reputation of an identifiable person or organization.  Make sure you have facts you can prove without the anonymous source before publishing the information.  (See also, Rule 1.)

3.  If your story relates to any future lawsuit, investigation, or prosecution, you could be ordered to disclose your anonymous source.  If you exhaust your own legal protections, such as your state’s shield law, and refuse to disclose, you could be fined or even imprisoned.  (See also, Rule 5.)

Do not promise anonymity without good reason.  Some media lawyers now advise a journalist promising anonymity to tell a source the promise will be kept unless failure to disclose would violate a court order or result in risk of jail.  If the source says that’s insufficient, the journalist can consider whether the story is really worth the possibility of fines and/or jail before agreeing to take on that risk. 

Use of Anonymous Sources

If you run a citizen journalism site, advise your reporters to limit the use of anonymous sources.  If you’re supervising and editing their work or paying for their content, as opposed to simply providing space for third-party posts, insist that every use of an anonymous source be explained and justified. 

Notorious cases of fabrication have involved the use of anonymous sources who couldn’t be verified because they never were identified to editors.  Don’t fall into that trap.  You need to be convinced that any confidential source in a story you edit does indeed exist, is as described, and that there is a good reason to include the anonymous source in your publication.  Ask enough questions of your reporters to be reassured.  If you’re still uncomfortable, do your own checking. 

Negotiating Confidentiality Agreements

Before promising confidentiality, consider:

• The overall importance of the information you seek to obtain.
• Whether it’s worth promising anonymity to the source.
• Whether the identity of the source is perhaps even more significant than any information he or she might disclose in which case you clearly do not want to offer confidentiality.
• What exactly are you promising to keep confidential;
• Whether there is any other way you can gain access to the information.
• Whether you’re sure you can keep the promise.
• Whether there are any limits on your promise, such as court-ordered disclosure and jail.  If so, make any limitation on your promise part of your agreement with the source.

Generally, when you identify yourself as a journalist or blogger, your interviews are “on the record”, meaning you can identify your source by name, title and accurate description of the source’s relationship to your story subject, such as “Janet Rappaport, Brixinmorter High School principal.”  If a source asks to be anonymous after beginning the interview, everything said up to that point is generally understood legally and in standard journalistic practice to be on the record.  Sure, you can decide to be accommodating and grant the source’s request, but that’s up to you. 

When a source requests anonymity in exchange for an interview or information, then you have two reasonable options: discuss or decline.  Don’t just agree. If other sources are plentiful and just as informed, move on.  It’s in your interest and in the interest of you readers to have as many on-the-record sources as possible. 

If, however, your potential source is uniquely situated to provide important information or can offer a perspective that’s crucial for your story, then it may be in your readers’ interest to negotiate.

Before agreeing to anything, you first need to clarify exactly what you’re being asked to promise. 

Can you use the information, including quotes, without using the person’s name?  If so, how can you describe the source?  Can you use the title and a more general location, such as “according to the principal of a Fredonia County high school,” or is that too precise for the source?  Can you use the school, but not the exact title, such as “according to a Brixinmorter High School official,” or is that more than the source is willing to offer?  If you agree to keep the source confidential, you still want to negotiate with the source on a description for your story that best informs your readers of the source’s level of knowledge, vantage point and any possible agenda or bias.  More generic attributions, such as an “informed source” or “insider” do not inform your readers as well as more precise descriptions, such as “a managing director at a competing investment bank” or “an attorney representing one of the plaintiffs in the case” or a “member of the Planning and Zoning Commission who joined the majority of the Commission in rejecting the developer’s proposal.”

Before agreeing, be sure you understand why a source is seeking anonymity.  Is he or she aiming to hide behind anonymity to defame another person or business?  If so, your potential repetition of defamatory material could make you vulnerable.  (See Rule 1.) 

If you do agree to keep the source confidential, share the reason with your readers.  Perhaps your source could be fired or lose business or the trust of colleagues if quoted and identified, perhaps your source is afraid of alienating a neighbor who disagrees, perhaps your source has some obligation to keep information confidential, or perhaps your source has some official role that would make it improper for him or her to speak out.  These are typical and often valid reasons for a source to request confidentiality.

If you do promise confidentiality, stick to your promise and do not allow any editor or publisher to override your commitment.  Keep in mind that violating a promise of confidentiality could land you all in court.

If ordered by a court to disclose an anonymous source, get a qualified lawyer’s advice immediately. 

Non-Disclosure Agreements

Suppose that a former employee who had signed a non-disclosure or confidentiality agreement with her former employer posts some of the information covered under the agreement online.  These facts could lead to a lawsuit for breach of contract and other claims.

However, if the former employee, or even a current employee, anonymously delivers the information to a citizen journalist, the citizen journalist can publish with little legal risk to the citizen journalist.  (See Rule 5.)  Non-disclosure agreements bind employees and others who sign them.  When a citizen journalist with no relationship with a company becomes a passive recipient of confidential information, publication can be legal.

Before you risk violating a non-disclosure agreement to which you’re a party, you’ll need to revisit it.  Go back and look at exactly what you’ve signed.  Ask a lawyer whether there’s some state or federal whistleblower law or reporting obligation that limits or trumps your commitment to keep the company’s confidences. 

For Future Reference:  When you accept a new job, be sure to get copies of any documents you are asked to sign.  That way, if you talk to a reporter or become a reporter, you can easily check the bounds of your agreement.

Freelance Contracts

Say that you are asked to sign a freelance agreement or some other contract relating to publication of your work. Or say that you’re a citizen media Web site producer and you have freelancers who work for your site.

Freelance contracts can document negotiated terms between reporters and publishers.  But some provisions can go beyond what’s reasonable or expected. 

Freelance contracts typically contain content requirements and standards, deadlines, compensation and kill fees, the extent of the publisher’s right to publish (copyrights), and the rights and obligations concerning third-party lawsuits including libel and privacy claims.

Content requirements, deadlines and compensation are all relatively straightforward and easy to understand.  But copyright and indemnification clauses are more complex and can lead to unexpected legal problems.

In terms of copyrights, it’s important for both freelancers and publishers to understand that the right to reproduce or publish someone’s creative work generally belongs to the author unless contracted away.  A freelancer can grant exclusive rights in all mediums for publication throughout the universe for all time, or something less than that.  (See Rule 6.) 

A publisher may want an exclusive right to publish an author’s work.  An author may want the right to be non-exclusive in order that the work can be resold elsewhere.

A publisher likely will want not only the right to initial publication, but also the right to reproduce the work in the future in other forms. 

There have been contentious lawsuits over whether a magazine or newspaper publisher who buys a work for print publication also has digital rights.  The answer is generally “no”, unless the author has, in addition to print publication rights, contracted digital rights away. 

To avoid problems, publishers and authors need to be clear on what exactly the author is granting and what publication rights the author is retaining.

Obligations relating to third-party lawsuits, for libel or privacy or copyright infringement, for example, are another nettlesome area. 

Freelancers should be particularly careful about signing any agreement that includes an “indemnification clause.”

Such a provision can make a freelancer legally responsible for the publisher’s legal risk and legal fees in the event of a lawsuit involving the freelancer’s work.  This can subject the freelancer to unreasonable legal risk. 

Depending upon how an indemnification clause is worded, exorbitant and uncontrollable expenses can arise even if the freelancer has done nothing wrong but some third party files a lawsuit. 

A freelancer who signs an agreement that includes such a provision can be financially responsible not only for his or her own legal defense, but, in addition, for legal expenses of others.  Should the publisher opt to settle the lawsuit, the freelancer could be on the hook for the settlement as well. 

Here’s a solution that can serve the interests of both freelance writers and citizen media Web site producers.  Instead of including an indemnification clause in freelance contracts, include a “best efforts” clause in which the freelancer promise that if there is a lawsuit, he or she will cooperate with the news organization’s defense.  That will give the publisher reasonable reassurance of not being left in the lurch because the freelancer will be available with time and information to help defend against a lawsuit.  It will save the freelancer from assuming unreasonable legal risk.

Whether you’re a freelancer or Web site producer or other type of publisher, never sign a contract without fully understanding what you’re promising.  If something is unclear or seems unreasonable, consult with a qualified attorney. 

(c) Geanne Rosenberg

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