Bloggers beware

Influential blogger Jason Kottke has run into a spot of legal trouble with Sony after he blogged about the TV show jeopardy, and the situation has exposed one of the biggest differences between blogs and Big Media: newspapers and magazines have legal teams and big pockets, and bloggers don’t.

Inevitably, as blogs become more influential they attract the attention of lawyers, and it’s very important to know the law to make sure you don’t get into trouble. For UK bloggers, there are three key things you need to watch out for: copyright, malicious falsehood and libel. These things are drummed into every trainee journalist from day one, and as the lines between blogging and “proper” publishing continue to blur, bloggers should pay attention to them too.

Libel is the biggie. Put simply, libel – often described as “defamation” – is when you write something that’s provably false, and which damages someone’s reputation. Such cases are open to interpretation, and because libel cases are so expensive they are often seen – rightly, in my view – as a way for rich and powerful people to suppress legitimate criticism. Robert Maxwell was a big fan of libel cases, and won countless cases against journalists; after his death it emerged that most of the supposed libels were in fact true.

It’s important to note here that you don’t need to be the person who started the libel: under UK law, repeating the libel is enough to land you in hot water. There have been a number of cases where sites have been held responsible for their users’ posts on message boards, and they have set the precedent that the site owner is the publisher – which means it’s the site owner who gets sued. In the case of a blog, that means you.

It’s also important to note that it doesn’t matter where your site is actually located. Successful legal action has been brought against site owners in the UK and Australian courts over material posted elsewhere, on the grounds that while the material may have been on a US server, it was available to readers in the UK or Australia and therefore still damaged the person’s reputation in those countries.

(Incidentally, libel and slander are often confused. Slander is verbal, libel is written.)

Copyright is a fairly common one, and the main thing to watch is content that encourages others to infringe copyright – such as links to illegal software downloads, or files that break copy protection. If you’re unlucky enough to catch the attention of a firm with deep pockets, the penalties for copyright infringement can be severe.

Malicious falsehood is similar to libel, but works in a slightly different way. It applies when a false statement is published maliciously and causes (or is likely to cause) financial loss. So for example if you say a firm has gone out of business but it hasn’t, then that is potentially a malicious falsehood: it isn’t defamatory – you’re not suggesting that the firm’s boss eats babies or has sex with Saddam Hussein – but it’s a false statement that could cause the firm financial harm.

David Price has an excellent guide to this stuff here. If you’re writing controversial content on your blog, it’s worth reading up on media law. The last thing you want is a lawsuit.


Earn less money, get fewer benefits… pay more tax?

More proof that the Chancellor hates self-employed people: The Times reports that the Treasury wants to dramatically increase the amount of tax paid by people who dump well-paid jobs for less lucrative, home-based jobs.

The Times notes that self-employed people pay National Insurance at 8% instead of the 11% paid by full-time employees, and suggests:

Ministers’ particular aversion to “lifestyle” businesses is the lack of contribution they make to the economy: in general they are run from home, with no employees and the owners often have no ambitions to grow them into large companies. There are an estimated 500,000 such businesses in Britain.

I’m sure that many of the people reading this will think “well, it’s only fair that self-employed people pay the same amount of national insurance as employed people.” I’d disagree with that: if you’re an employee you get holiday and sick pay; self-employed people don’t. Your boss pays you on time; when you’re self-employed, that’s a rarity. Self-employed people pay more home insurance, pay higher car insurance, find it much more difficult to get finance, have to provide their own equipment (whether that’s a joiner’s tools or a writer’s computer), have to deal with a tax system that was designed by Beelzebub, can’t get benefit if their wage drops from £10,000 a year to £1,000 a year, etc etc etc. Financially any benefit from a lower national insurance rate is more than compensated for by the risks and costs of going it alone.

As the article notes:

John Whiting, a partner at accountants PricewaterhouseCoopers, pointed out that while there are tax advantages for the self-employed over employees, they also receive fewer benefits and have to take more risks emotionally and financially than employed people. “All this seems to be forgotten,” Mr Whiting said.

I suspect that this move, like the recent rise in NI rates for everybody and the growing number of stealth taxes, is motivated by a desire to increase the tax take without boosting the headline rate of income tax. Which is a bit rich when the government cheerfully flogs off the Inland Revenue’s buildings to a company based in a tax haven, and Murdoch’s News International doesn’t pay a penny in corporation tax thanks to some clever financial footwork. Compared to those activities, any lack of revenue from the self-employed sector is very small beer indeed.


So you want to be a writer?

Originally scribbled in July 2004; updated February 2005; updated again February 2006.

I know that a number of writers and editors visit this blog, and I’d really appreciate it if you could add your own tips or links in the comments section, whether anonymously or on the record. Thanks.

Largely because of this site, every week or so I’ll get an email asking for advice on breaking into journalism. I’m not sure how much help I can be – I’m hardly an expert – but I do my best to reply; when I was taking my first steps into writing, I was lucky enough to get lots of good advice from more established writers, and I’m forever in their debt. However, because I’m invariably in deadline hell and don’t usually have the time to write a long reply, I thought it would be sensible to stick some advice up on this site to save my aching hands.

What follows isn’t a how-to guide; it’s a collection of comments based on my own experiences and prejudices, listed in no particular order. Here goes…

Read these first

The late John Diamond wrote an excellent demolition job on those “so you want to be a writer?” correspondence courses, and it’s a must-read.

If you want to be a games or consumer technology writer, then I’d recommend “So you want to be a videogame journalist?” by the inimitable Stuart Campbell. Although Campbell’s article was written in 1997, the industry – and come to think of it, the money offered to writers – hasn’t changed much.

Should I quit my day job?

Not until you’ve got a steady stream of freelance work – and make sure you have six months’ money in the bank. Freelancing is a game of “feast or famine”, which means it’s very risky. Like any form of self-employment, if you’re going it alone then get some savings stored up, clear off your credit cards and build up your client portfolio before making the move.

Be aware, too, that unless you’re extremely lucky, freelance writing isn’t necessarily a licence to print money. Have a look at the NUJ’s handy Rate for the job site and you’ll see that in many cases, publications pay less than 10p per word. So if you’re doing music writing and get commissioned for a single 300-word review each month, you might have to cancel your order for an Aston Martin. In 2004, the NUJ reported that 50% of UK journalists earned less than £13,000 per year (the average UK wage is double that).

There’s also the problem of late payment. Go to any journalist forum and you’ll see endless tales of companies that took up to a year to pay their writers, or publications that went bust owing writers thousands of pounds. When you’re a freelance, the only time you can be sure you’re going to get paid is when the money has actually cleared in your bank account.

Most importantly of all, you need to learn about tax. The UK self-assessment tax system is the work of Beelzebub, but you have to endure it. If you muck up your tax then you’ll enter a world of pain and hurt, so if you’re not sure what you’re doing then get a good accountant to do the dull stuff for you.

Should I study?

If you want to work in newspapers or corporate journalism (or get work experience on a magazine) then a formal journalism qualification will be a big help. However, for freelancing qualifications are utterly irrelevant: in six years of writing, I’ve never been asked whether I have a degree (for the record the answer is “no” – I left school at 16). I know dozens of journalists and I can’t think of a single one who actually studied journalism.

Will editors laugh at me if I don’t have any published work?

Not necessarily. That said, unless you want to take the risk of writing on spec – which means you do all the work with no guarantee that it’ll ever end up in print – then you’ll need to prove that you can actually write. There are various ways to do that: you could write for fanzines or special interest Web sites, you could have a weblog (but not one of the “got up this morning, felt depressed, why oh why oh why is the world so unfair?” type), or you could self-publish by writing some articles and putting them up on your own site. The downside to each of those methods is that you’re writing for free, which is never a good thing, but if you’re doing it purely to build up some decent samples of your work then it’s a sacrifice that may be worth making.

What should I write about?

What do you know about? If you’re a specialist in something fairly unusual you’ll probably find it easier to get work in big quantities than if you’re chasing the same work as everyone else. The trick to journalism is to find a niche: Jeremy Clarkson gets work because he’s pitched himself as a stereotype: right-wing, sexist, anti-environment and so on. You’ll find that most successful working journalists do something similar: they get work because they have a unique way of looking at things, because they do something a bit different or because they’re an expert in a niche market.

Research is essential. If you’re not familiar with the magazine you’re approaching, your pitch is probably doomed. There’s a huge difference between newspapers and magazines, or between magazines in the same genre: for example .net is quite irreverent, while PC Plus is more serious; FHM is laddish, GQ is more aspirational, and so on. If you don’t know the personality of the title you’re approaching, you’re wasting your time. And if you pitch a story that was last month’s cover feature, expect to be ignored at best and mocked at worst.

Get your hands on a copy of the Writers’ and Artists’ Yearbook. It gives contact info for pretty much every magazine, newsletter and paper in the UK together with details of how to submit articles. However, use the Web too: contacts change over time, so the ed of X magazine today may not be the ed when you’re pitching a story. And of course, magazines go out of business. Current contact info is essential – and the *right* contact is even more important. For example in most magazines, it’s not the editor you need to approach: it’s the features editor or the reviews editor. You’ll find their details on the web, or in the mag’s “flannel panel” – the bit, usually near the letters page, where it lists the staff, contributors and contact address plus legal bumph.

Many magazines and newspapers have formal submissions policies, which you’ll usually find on their web sites. If such policies exist, you must read them; if you don’t, your pitch is likely to go straight in the bin.

Should I write for free?

If you’re working for a charity, absolutely. If you want to do a favour for a friend, sure. If the magazine can afford to pay writers but doesn’t want to, no.

There are all kinds of magazines and Web sites that say “we can’t afford to pay you, but we can give you exposure”. That’s nonsense: in the overwhelming majority of cases you get sod-all exposure from these things, and if they can’t afford to pay you then they’re obviously not doing well enough to take seriously. And more to the point, you’ll find that the people who can’t afford to pay *you* can still afford to pay for web space, printing, salaries, coffee, train tickets, photography etc etc etc. It’s a con: because there are so many people willing to work for free, editors think they can get you to do a professional job for nothing or next to nothing. Avoid them, they’re scum.

The other “write for free” thing is the issue of spec writing, when you put together a story and try to sell it. Generally speaking that’s a bad idea, because you’re doing all the work and you’ve got no guarantee you’ll ever get paid for it. Much better to pitch the idea to a magazine and then write it if you get a commission, not least because every magazine has a different style so a spec article is unlikely to match that exactly.

Are there any nasties in the contracts?

Sometimes. The three things you need to watch out for are rights grabs, syndication and liability.

Rights grabs are about copyright. As a writer, you make your living from selling copyrights; when you sell a story you are essentially selling the publisher a package of rights. Those rights are typically First British Serial rights, which means the publisher can print your story in the UK.

In recent years, though, publishers have attempted to get more rights for their money, much to the chagrin of the National Union of Journalists. Without upping the fees, they attempt to get all rights, in all territories, in all media, forever. That means you get paid for UK publication, but the publisher can then publish your story in the US, in Europe, on the Internet, in a database, in a book… all without payment to you.

Many journalists believe that’s unfair, because the publisher is getting paid again and again: they get paid for the UK publication, then again for the European one, and again for the American one, and possibly by web site visitors, and book purchasers… why shouldn’t the writer get a share of that? And they’ve got a point: I know of some journalists who make a comfortable living writing fewer than 1,000 words a month, because they sell the same rough story to one publisher in the UK, one in France, one in the US and so on.

The NUJ suggests that rights grabs should be avoided at all costs, but you have to be realistic: in many sectors the choice is between taking on work with a rights grab attached, or not getting any work at all. It’s horrible, it’s unfair, but freelances have to eat and your bank manager doesn’t care about principles if they mean you can’t pay your mortgage. If you can’t afford not to sign a rights grab, at least try to get the rate hiked up to compensate.

[The subject of rights grabs is a touchy one for freelances. Typically freelances who make stacks of money and haven’t signed rights grabs are appalled at anyone who signs their copyrights away; but the freelances who don’t make stacks of money argue that if there’s a choice between no work and rights grab work, they’d rather work than starve. Ultimately the decision is yours, but it’s worth doing a Google on the subject so you know the pros and cons of accepting or refusing rights grabs.]

Syndication is in a similar area to rights grabs, and it’s when a publisher re-sells your work to another publisher. For example, you might write a story for X Magazine in the UK, and the publisher sells it to X Newspaper in the US. The publisher will get paid for that, and by rights you should get paid too.

If you’ve signed a rights grab, you may have lost any syndication rights – which means once again, the publisher gets paid but you don’t. However, even if you do have an agreement on syndication (such as a 50/50 split of the income between you and the publisher) you can still get your fingers burned. It’s possible for firms to syndicate on a “you scratch my back and I’ll scratch yours” basis, where the publisher gets free advertising instead of cash. Because no money is changing hands, the writer gets 50% of nothing. Unless your contract specifically addresses such issues, you’re stuffed.

The third problem – and to my mind, the most serious – is liability. Get this wrong and you could end up in serious trouble.

Liability defines who’s responsible if an article is wrong, and in most cases if the cock-up is yours, if you plagiarise someone else’s content or break some other law, then you’re the one who should face the consequences [although the publication can also be slammed for printing your mistake]. However, publishing can be more complex than that: your article might be rewritten or heavily edited before it hits print, and mistakes can creep in. You shouldn’t be held responsible for any mistakes that happen after you’ve handed in your copy, but I’ve seen – and been asked to sign – contracts that attempt to do just that.

For example, I was asked to write a very technical book for a very, very big book publisher. The contract essentially said:

When you submit your finished copy, we reserve the right to throw all of the text away and replace it with someone else’s words under your name. If we happen to libel someone, spark off war in the Middle East or make millions of people’s computers explode by sticking any old crap in the book, you accept full legal responsibility. We know it’s unfair to make you legally liable for other people’s cock-ups but hey! Do you want the work or not?

The publisher in question refused to budge on that clause, so I turned down the job (and cried like a baby – it would have been worth a fortune. Them’s the breaks).

And that’s all I can think of for now. I’ll no doubt revisit this post again soon…

Update, Feb 2006

If you’d like more advice, check out the Journobiz forums, a UK-based discussion group for freelances. There’s an entire section devoted to advice and support for student journalists and people starting out in freelancing, and the Journobiz members are a good bunch of people.

Update, July 2006

Not everyone agrees that writing for free is always a bad thing. Linda Jones has written an excellent article for IdeasFactory that shows the other side of the argument.