Freelance Editorial Cartoonist Suspended!

READER NOTE–Important updates to this article are included at the end.

The “suspension” of Steve Rustad, the Argus Courier’s freelance editorial cartoonist, for violation of his “contract” is a curious matter. In the abstract it appears to be a contradiction in terms.  If a person is a freelancer, how is it that they could ever be in violation of a policy or contract provision except for failure to produce the piece they agreed to provide?

Perhaps the “answer” is in the contract, which, of course, I am not privy to.  However, I wonder just how such a contract might read and whether or not the signatory freelancer of such a contract is a de facto employee. If so, then there are a host of other legal issues that come to mind. Such contracts are known as contracts of adhesion or one sided contracts. In other words, the terms and conditions are not negotiated.  It is strictly a take it or leave it contract.

Petaluma 360 bloggers are also “bound” by a written agreement. While they are not compensated (insofar as I know) they have certain restrictions and requirements imposed on them. I suggest that Petlauma 360 bloggers become aware of them if they have not already done so.

Below is the latest version of the Petaluma 360 “Blogger Agreement” that I have.  I highlighted certain critical portions–particularly the section where bloggers agree to hold Petalluma 360 harmless. 

After reading it, it may be prudent for bloggers to check with their insurance agent as to whether homeowners insurance will cover them in the event of legal action or litigation.

_________________

Petaluma 360 Blogger Agreement

PLEASE READ THESE TERMS AND CONDITIONS OF USE

By submitting weblog columns (“blogs”) to petaluma360.com, you agree to the following terms and conditions and any subsequent modifications.  Petaluma360.com may revise these terms and conditions from time to time, and the new terms will take effect on the date of posting.  Please review these terms and conditions every time you post a blog as they are binding upon you:

1.  You agree to update your blog at least once per week.

2. You may post your blogs to other blogs, provided the blog posted on petaluma360.com is updated first.

3. You may post readers’ comments. 

4. You may not post libelous, untruthful or obscene material or comments.

5. You acknowledge and agree that your blog, in whole or in part, is subject to removal by petaluma360.com in its sole discretion.

6. You may not post any self-serving or commercial promotion materials.

7. You represent and warrant that your blogs will be original, will not plagiarise another’s work, infringe another’s copyright or trademark, violate another person’s rights, including the right of privacy, or contain libelous or otherwise unlawful or misleading material.  You also represent and warrant that your blogs will not have appeared elsewhere, in whole or in part, and that you have not been paid to promote another’s viewpoint or product.  You agree to indemnify and hold petaluma360.com harmless from all costs, expenses, liabilities and damages arising from a breach of the foregoing representations and warranties.

8. You grant to petaluma360.com the irrevocable, nonexclusive, royalty-free license to redistribute or republish your blogs in any medium or form. 

John Burns, Publisher

707-776-8450 May 21, 2010

UPDATE November 14, 2010  Go to>> Drawn and Quartered

UPDATE November 15, 2010  Focusing only on the apparent provision in the freelance contract with the NYT prohibiting a freelancer from doing work with any “current or potential news source”…it appears that such “non-compete” clauses have been declared invalid by the California Supreme Court. See http://lawzilla.com/content/noncompete.shtml

UPDATE Novemver 15, 2010– COMMENTS FROM AROUND THE WEB

  • November 13th, 2010 8:43 am | [...] This post was mentioned on Twitter by Petaluma360 and Feelancer Team, Blog-o-Line. Blog-o-Line said: : Argus Cartoonist Suspended … Bloggers Beware – Petaluma Argus Courier (blog) http://ping.fm/SJAIn http://bit.ly/avtqOB [...]

    by Tweets that mention Argus Cartoonist Suspended … Bloggers Beware – Petaluma Spectator – Petaluma 360 – Petaluma, CA – Archive — Topsy.com

  • November 13th, 2010 10:40 am Thank you for posting this, Frank. I had no idea these sort of terms and conditions were in effect. I’m not entirely sure that Ross was ever notified directly about them. Perhaps they didn’t exist when he was originally approached by the Argus to write a blog, prior to P360′s existence. Either way, definitely some food for thought, particularly item 8.

    by Jennifer Lockhart

  • November 13th, 2010 11:45 am Jennifer–I agree that Item 8 is important. But don’t forget Item 7. That is where the danger for individual bloggers resides. See “Your Internet Posts Can Get You Sued For Defamation…or worse!” Link>> http://frankpetaluma.wordpress.com/2010/05/01/your-internet-posts-can-get-you-sued-for-defamation-or-worse/

    by Petaluma.Spectator

  • November 13th, 2010 12:15 pmDo I have this right? If you are a blogger, all the benefits go to Pet 360 and you take all the risks? SUCH A DEAL!

    by Steven

  • November 13th, 2010 12:34 pmSteven–I can only answer your question by directing your attention to the link I mentioned in the response to Jennifer above

    by Petaluma.Spectator

  • November 15th, 2010 3:09 am Argus Cartoonist Suspended … Bloggers Beware – Petaluma Spectator ……

    Here at World Spinner we are debating the same thing……

    by World Spinner

  • November 15th, 2010 10:34 am Thanks for the post, Frank. I sort of recall the agreement, but sometimes wonder if my “opinions” could be taken exception to…but that would be censorship! Oh, no! Love how Stephen Colbert manages to lampoon about anything he feels needs attention with nonsense. I just want to write the truth with joy. But truth is a relative thing. Aren’t we all relatives?

    by In.Her.Own.Write

  •  

  • –The Times’ ombudsman addressed the issue of freelancer ethics a while back. Some freelance writers had apparently accepted junkets.
    Freelancing is to employment as a one-night stand is to marriage. If newspapers want to control what you do outside work, they ought to marry you–i.e., pay you a full-time salary and benefits. Otherwise, they ought not to stand in the way of “dating”–or making a living elsewhere. 
    –Is the New York Times Company seriously suggesting that they don’t have freelancers who also have direct political campaigning views? They publish editorials from active politicians every week. 
    –We’ll be seeing more and more of this as media companies install the new plantation-system, where everyone, except management, is freelance or work-for-hire. The bigshot contributors will still be able to do what they want. Everyone else… including cartoonists, of course… is screwed.
    –Ethics are fine and dandy when you’re making $75,000 a year to be ethical.
  • I’ve never done any work like this here, and probably wouldn’t, but I’m not going to fault the guy for doing an unsigned freelance job.The old standards no longer apply. FoxNews and Huffpo and, yes, NYTimes Inc. have seen to that.
    How many editorial page editors have slid into high-paying jobs as political operatives or corporate flaks and then slid right back into newsrooms a few years later? No one seems to have a problem with that.
  • The Web As A Tower of Babel?

    Some of the articles in this category (Legal & Personal Dangers–The Internet & New Media World) reflect on the changes in the news media generated by the Internet. 

    To briefly recap…

    • News organizations (whether television or print media) are being severely cut back due to the loss of advertising revenue, viewers, or readers. 
    • This, in turn, reduces in-depth information gathering and investigative reporting to the public.

    Frankly, much of what now passes for news is merely a reprocessing of pubic relations releases or statements from government or businesses.

    IN MY OPINION: The expectation that independent journalists will become the new providers of “real” news is absurd in the extreme. 

    • Oh, to be sure, there are courses (some provided by journalism schools) teaching or preaching the new digital age of journalism to former newspaper or television reporters; however, they had better be prepared to work for next to nothing. 
    • Yahoo recently announced a new consortium with several newspapers to provide online content from over 300,000 independent “content providers” who will work for as little as $2 an article

    Locally, several individuals are trying to establish advertising supported online “news” outlets through blogs or by paid subscriptions to local web-based news publications. Of course, there is also the Petaluma 360 model. 

    The explosion of information sources  is replacing  traditional central sources of information.

    IN MY OPINION: It remains to be seen whether or not the Web is becoming another Tower of Babel where everyone has a voice…and no one is heard.

    Your Internet Posts Can Get You Sued For Defamation

    Foreword 

     I started posting on this WordPress site a year ago this month–102 posts and 296 approved comments in the first year.  Thanks to the readers and commenters for making this a great experience.

    As circumstance would have it, the inaugural article for the second year is about the medium as opposed to a Petaluma story.

    ___________________________

    MEMO TO: Bloggers & Users of Myspace, Facebook, Message Boards, Newspaper Forums, Twitter, E-mails, etc.

     

    From time to time, I have written about the use of the various forms of “new media” or “social media” –Blogs, Forums, Facebook, Twitter, etc.  The number of articles finally reached the point where I decided to create a new archive category–Legal & Personal Dangers–The Internet & New Media World

    To date, I have tended to focus on certain privacy issues and what, to me, was a certain lack of decorum and civility in much of what is posted on the various social media outlets on the Web. I also touched briefly on liability issues for those posting comments or articles on the Internet.

    Throughout this series, I tended to pull my punches, as I “know” that I am just “old & grumpy” and hence, my opinions are suspect.  However, I recently came across a book written by someone who is definitely not in the “old & grumpy” category, Amy Alkon. Two lines from her book really struck me and I share them here with her express permission…

    There’s a meanness, a hostile self-centeredness, that’s overtaken our society since around the turn of the millennium…

    Technology isn’t to blame.  It just allows rudeness to be spread farther, faster and to a wider audience.

     “I SEE RUDE PEOPLE: One woman’s battle to beat some manners into impolite society” by Amy Alkon (pages 4 & 6)

    It was refreshing, if not invigorating, to read Alkon’s exploits in “fighting back” against the various forms of “rude behavior” that technology now spreads at the speed of light.

    I caution practitioners of societal rudeness on the Internet that they may meet up with someone more formidable than the larger than life Amy Alkon–i.e.,  process-servers or police officers with arrest warrants.

    In other words, instead of–or in addition to–being a chapter in her next book or the subject of one of her columns or blogs, they could end up in court paying lawyers to defend their words…

    _______________________

    I.

    Anonymity is an illusion…induced by the glowing pixels on

    your

    screen

    Manners and rudeness notwithstanding, individuals can get into serious legal trouble with posts on any of the social media outlets attacking or criticizing individuals, institutions, or corporations if the subjects of the posts believe they have been libeled. Some posters may learn hard lessons about the arcane elements of “tortious interference with business expectancy” and/or trade libel.

    Therefore, you had better know what you are doing.  Moreover, even if you do, you still may encounter lawyers…or prosecutors, if there is a question of a crime caused by your posts.

    In the online world, you have the ability to exercise your right to free speech on any number of news websites that permit blogs or public postings to news stories, online forums or other message boards. However…there is no absolute right to say or write anything you want without risking litigation or other consequences…

    See Internet-Libel vs. Free Speech

    As a general caution, I remind everyone to be generally aware of copyright laws as well as the general rules of libel when posting on the Internet…

    • It is one thing to dump on a public figure or public official, but the legal standards are quite different when it comes to private individuals or businesses.
    • If you don’t understand the difference, perhaps you should learn something about New York Times vs. Sullivan. (1)
    • Finally, be aware of SLAPP –as in “slap you down”– suits (2)

    Above all, please keep in mind that posting under a screen name will not protect you.

    ___________________________________

    II.

    Anonymity’s cloak may be pierced by subpoena…

    or a properly issued search warrant.

    …It also may be lifted by the site administrator…

    There is a raging controversy in Ohio over the recent disclosure of the identity of a regular poster to the Cleveland Plain Dealer’s web site.

    Several posts had been made on the paper’s web site commenting on pending criminal cases.  They were traced, via the e-mail address used to register with the newspaper, to the e-mail account of the judge hearing the cases. Now there is a legal question as to whether this information should have been revealed by the newspaper and the Judge is suing the newspaper for $50 Million. (Click HERE  and HERE(3)   (For an update on how this particular case was resolved, Click Here.)

    The more likely means of determining the identity of a poster is through the legal system by subpoena, discovery, or a properly issued search warrant. At this point, you will have to hire a lawyer to defend your words in court.

    One commentator on NPR’s “On the Media” program suggested that everyone should have defamation coverage before posting on the various social media sites on the Internet. I think that this is perhaps a bit extreme and frankly, the cost of the insurance is not insignificant. It should also be noted that even with insurance, there is always the question of whether or not a particular publication is covered by the policy.

    Given the sheer volume of postings on the Internet, it is my opinion that posts that cross the line will be ignored unless and until they become nearly viral.  But there is no question that anyone can be sued…at any time. (4) 

    There are three articles I can recommend as a starting point for everyone who sends e-mails, blogs, or posts on the various social media sites…

    ______________________________

    III.

    Independent Journalists

    Due to changes in the traditional media world (newspapers & television news), there is an increase in the number of professional journalists going it alone–freelancing. In addition, there is the rise of the so-called “citizen journalist” enabled and empowered by the tools provided by the Internet.

    These freelancers or citizen journalists may post on their own sites or blogs or on Internet news sites.

    Of course, all of the legal constraints apply to them–and they don’t have the resources of a company legal department to back them up.

    This situation is discussed in some detail by Alan Mutter in…

    I encourage the “new” journalists to read Mutter’s articles. Remember what usually happens to messengers–they used to risk getting shot…today, they risk getting sued. I suppose that is progress of a kind.

    As a sign of our times, take note of the following…

    • As a partial answer to the risks of going it alone as a journalist, one organization has set up a legal defense fund
    • In addition, the California Media Workers Guild has created a Freelancers Unit. (6)

    _______________________________

    In Closing…

    • You Can Be Sued For Your Internet Posts…
    • Bloggers & Users of Myspace, Facebook, Message Boards, Newspaper Forums, Twitter, E-mails, etc. should continue to exercise the right of free speech…
    • But be aware of the legal environment in which you operate. (7)

    _______________________________

    NOTES

    • (1) The most famous case on libel insofar as journalism is concerned is New York Times v. Sullivan.  In that case, the U.S. Supreme Court held that public figures and public officials could not sue for traditional libel unless they could prove “actual malice” on the part of the person who created the alleged libel.  The reasoning was that public figures or public officials, being public, had to have thicker skins. Of course, this does not mean that they could not still initiate litigation, but the newspapers have legal departments and the money to defend.
    • (2) SLAPP Suit (Strategic Lawsuit Against Public Participation)–Litigation to shut down public comment and Internet postings.  Even though they may be without merit, they cost money to defend.  For more information, run a search on the Internet.  
    • (3) One aspect of this case that is not (as of yet) drawing that much attention is the allegation that some of the anonymous comments on pending litigation came from a computer at the courthouse.
    • (4) While I initially saw a place for anonymous posts, I am now opposed to them. I believe they encourage bad behavior on the part of some people. Some of this behavior, in my opinion, crosses the line into legal “actual malice” when it comes to public figures and officials. Here is an interesting article about anonymous posts: How to Identify Anonymous Bloggers  Also see Podcast: Rexxfield repairs online reputations
    • (5) While running a search, I happened to notice an advertisement for a law firm specializing in online defamation.
    • (6) Freelancers Unit 07 May 2009 California Media Workers
      The California Media Workers Guild voted last summer to form the freelancers unit, the first of its kind that is connected to a local office of The Newspaper Guild, which is part of Communications Workers of America. We intend to build a unit that uses the power of numbers to directly support the needs of independent writers and journalists in all media, including hundreds of workers laid off by Northern California media outlets this year. We also hope to build solidarity between staff journalists and freelancers. To contact us: freelance@mediaworkers.org
    • (7) While this article has focused on the use of the Internet by private individuals. freelancers, and citizen journalists, there is also the question of the use of social media by elected officials under their own name or under a screen name.  See Villa Park Council Weighs Member’s Facebook Post: Free Speech or Too Inflammatory?