Online and Off-Line Publisher Liability and the Independent Contractor Defense
Communications Lawyer, Volume 26, Number 2
March 1, 2009
Drew E. Shenkman- Washington
Charles D. "Chuck" Tobin- Washington
An increased reliance on freelancers may provide new opportunities for media defense counsel and their corporate clients to shorten litigation and curtail exposure for tort claims. While employer-employee relationships bring with them respondeat superior liability for publishing torts such as defamation, masters traditionally have not been held vicariously liable for the torts of their independent contractor servants. Although a handful of reported decisions—most of them favorable to the defense—reflect some pursuit of the independent contractor defense, its use in the media and entertainment industries remains, from all outward appearances, confined to the field of book publishing.
Ethical and practical considerations may make it difficult to mount this type of defense in a given case. But the strength and continued vitality of the doctrine suggest that media defense lawyers ought to consider it seriously. And, in fact, counsel assisting in the engagement of a freelancer would benefit from considering this defense at the onset of the independent contractor’s engagement. One need look no further than a recent federal court’s application of the doctrine to an actual malice claim against an on-demand book publisher to see the power of the independent contractor arrangement. Please click on the link below to view this article.
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