Last week, I went to a really good restaurant that has opened near me. It’s had great reviews and so I could rely on its reputation to ensure I’d be happy. I wasn’t especially hungry so I said: “I’d like a table for one. I’m not sure what I want, so let’s go for the tasting menu. If I’m still not hungry when it arrives, I’ll pass.
“And if I do decide that I fancy it, great – I’ll try to pay for it within 90 days but obviously that will depend on budget and cash flow. Don’t email me to chase me for payment – I’m really busy, so I’ll ignore your emails. And whatever you do, don’t ring – I’ll divert you to voicemail and I won’t call you back.
“You’ll be paid in due course if and when I feel like it and if – and only if – I eat it. If I don’t, I might be prepared to pay half the bill. I’ll take a view with a few months. Possibly a year.”
OK, of course I didn’t. I would have been thrown out, arrested or – possibly – sectioned. But that is no different to the approach of many publications when it comes to paying the freelance journalists upon whom they rely to fill their pages.
The insidious policy of payment on publication, or POP, means that some can wait months – years in one or two cases – before being paid for work that they carried out on time and to the best of their abilities.
In the interests of transparency, I am writing this piece free of charge – a sign of our changing industry. I approached Press Gazette and offered the piece gratis because it has an admirable record of championing journalists and campaigning on issues that affect our industry.
For those who write for daily newspapers, usually it’s not a problem.
Features are often time-sensitive and appear soon after filing, meaning the writers receive payment within 30 days. It’s becomes more of a problem with monthlies, who commission way ahead of publication, meaning it’s potentially months before the work is published and longer still before you see settlement – long after you did the work.
One problem is that stories that are not time-sensitive, such as travel or real-life pieces, get bumped to make room for more topical pieces. It can be months and months before a piece appears, and case studies, who have often been required to attend photoshoots, either want paying as agreed and harangue the journalist as they have told family and friends that they will be in a publication.
Case-studies horror story
Experienced freelance Jai Breitnauer tells of one such horror story. Breitnauer wrote a three case study round-up for the Sun, for which they agreed a fee of £1400; from this fee, she agreed to pay £150 to each of the case studies, who were required to attend a photoshoot with their children.
Says Breitnauer: “They ended up using one case study, and paid £700, made up of £500 for me for the case study that they used, and a £200 kill fee for the rest of the piece. The case study wasn’t happy with the story and so I agreed to pay her £200.
“Another case study said that as the story had run she expected payment, despite her not being in it, as our agreement had been payment upon publication of the story. I explained I couldn’t pay her because her story had not run, but she sent me a letter from a contract lawyer stating that as ‘the’ story had run I had to honour the payment or I would be taken to small claims court. I didn’t have the energy for that so I paid her £225.
“Finally, the third case study was sourced through a very lucrative contact who I wanted to keep sweet for future possibilities, so I also paid that case study the £150 agreed, and I paid the contact the agreed £50 finders fee.
“So in the end I made £75 from the story, which had absorbed approximately 90 hours of my time over a period of four months.”
Breitnauer made the argument that the photographers and make-up artists had been paid so why shouldn’t she be? But the commissioning editor – “who was really lovely” – simply couldn’t do anything because that was “policy”.
Breitnauer is still bruised by the experience, and the unfairness of the system. “A lot of work goes into sourcing stories, looking after case studies/talent and, of course, the writing,” she says. “What you are selling is that work, not the finished product in print. The POP policy fails to recognise and reward good journalists for the work they have put in.”
Dispute over ‘kill fee’
Experienced freelance Punteha van Terheyden, who writes regularly for the nationals, tells Press Gazette of an ongoing case. Van Terheyden used to be a commissioning editor for Take A Break and therefore has experience of POP from both sides of the fence.
“I filed a big piece for the Sun last September. It involved a lot of coordination, getting several case studies from all over the country to travel to London for a shoot. My agreed fee was £2k.
“They have sat on it since then. When I protested, the commissioning editor put through a payment for two days’ work as an interim payment to get me off her back.
“They ignored dozens of emails and calls about it. I went to accounts, citing late payment penalties and interest and saying if we couldn’t resolve it, I’d pass the case to the NUJ, of which I am a member.
“The commissioning editor then sent me angry texts on a Friday night accusing me of threatening legal action (I hadn’t) and saying that I should know the score and if I didn’t like it, I shouldn’t bring them stories in future.
“They went on to say they would arrange a kill fee of one-third of my agreed fee to close the matter. I don’t want a third of my fee; I want my invoice paying. It’s these sort of bullying tactics that leave most freelances afraid to rock the boat as it will ensure that future work dries up.”
A spokesperson for The Sun said: “We are aware of this case and, though we have stuck to our industry standard-and-above policies on freelance work, we’re working towards a resolution.”
Silenced by fear
It’s fear that prevents many freelances from speaking out as they don’t want to be blacklisted.
In the course of researching this piece, many contacted the Press Gazette privately to say: “It’s great that you are speaking out about this scandalous practice – but I can’t go on the record, I have children to feed or rent/mortgage to pay…”
One who is not afraid to speak out is Sheron Boyle, who has written volumes for the nationals over the years. Boyle points out that, as the number of staff is being reduced every month from newspapers and magazines, it follows that the number of freelances is growing, and are vital to help get the publications on the shelves.
“Editors have pages to fill, we have stories to sell,” Boyle points out.
“It is a symbiotic relationship. So why do commissioning editors think it is acceptable to treat us so shabbily? Would they happily accept being told: ‘If we don’t use the work you do today, we might pay your salary in eight months and even if we do pay you, it might just be 50 per cent of what we agreed?’”
She says: “The army of sole freelancers toiling away at home is vast. Many have years of valuable experience and are highly skilled. It is harder than ever to earn a living as a freelance journalist and I know times are tough in the print industry, but we are treated as the easy ones to fob off.
“When we supply the story they asked for, we should be paid in full.”
Many of the freelances who specialise in real-life-stories write for magazines, and one of the biggest publishers of real-life magazines is Bauer (Take A Break, That’s Life! and Bella, among others).
A number of freelances have privately contacted Press Gazette to complain that Bauer, who used to pay on filing, is now embracing POP – to their dismay.
Veteran freelance Jacqui Deevoy, who specialises in these real-life stories (generally involving case studies) that seem to cause the most complaints from freelances about slow payment says that, in her experience, it’s getting worse.
For Deevoy, the whole POP process is a “nightmare”, she says. “I get commissioned, I write the story, file to a deadline, then wait…. Sometimes, the story gets published within a reasonable timeframe. Sometimes, I can be waiting for months. Most publications agree to pay within 30 days of the invoice date, but some don’t.
“A few publishers, though none that I work for, pay on filing but most, now including Bauer, possibly believing that many journalists are resigned to not being paid on completion of the work, have recently switched from payment on filing to POP.”
POP can be very problematic, particularly when it comes to real-life stories, says Deevoy.
She points out that case studies tend to get impatient if a story isn’t run within a few weeks.
Some get cold feet and change their minds about having their story published at all, she says, which results in the story being pulled and the writer not being paid.
And in other instances, after “sitting” on a feature for months, an editor decides they no longer wish to use the article, meaning a kill fee, the amount of which varies from editor to editor but which various freelances report is rarely more than 50 per cent of the agreed fee and often as little as 30 per cent.
This, she says, means that you have done all the work, submitted it to their satisfaction and with no problems highlighted by them, “but end up with half or less of what was agreed, and through no fault of your own”.
She adds that she has only even been offered a kill fee once, when she was commissioned to turn around a feature in a very tight period of time– “it meant staying up all night before deadline to get it finished,” she says – only to see the editor sit on it for eight months.
“After that time, I asked for it back and the editor put through a payment of £400; it seemed more of an apology than a kill fee,” says Deevoy.
“This year, for me, POP is having a devastating effect,”she says. “For the first three months of 2018, I have been working non-stop but have had zero payments. I cannot budget: my bills are being paid with borrowed funds. The stress of not knowing when payment is coming has made me ill.
“Even with the work rolling in, POP and the irregularity of the payments frequently leaves me with no money in the bank for months on end. How can freelance journalists be expected to live like this?”
It never used to be like this, says Deevoy, who has been a journalist since the 1980s: “Until a few years ago, I would submit an invoice when I filed the copy and it would be paid within 30 days whether or not the article had been published,” she says. “This is how it should be. It’s hard to establish when the system actually changed – it’s been more of an insidious tiptoe than an agreed progression done openly and with the journalists’ assent.”
What National Union of Journalists (NUJ) president Tim Dawson calls “the power relationship” between freelance and publisher is demonstrably one-sided and unfair. The attitude seems to be: “If you don’t accept our terms, there are plenty of others who will.”
Brighton-based freelance Joy Persaud has written for many of the nationals in her 25-year career, including The Guardian, the Daily Mail, the Evening Standard and the Independent. For her, the issue is black and white.
“There is no other profession where the deal is weighted in such a one-sided manner,” she says. “You’re commissioned, do a job, deliver to deadline and then are kept waiting – possibly indefinitely – until the person who offered you that commission and has accepted your delivery of said article, decides when/if it is to be used before you are paid.
“Can you imagine this stance working for any other trade? People would laugh. However, it is a serious issue and it is unethical and unreasonable – and can mean people going into debt, having done a good job. It needs to change.”
Daily Mail are good payers – but not always timely ones
While many cite the Daily Mail as being good payers, it seems that it is not immune from spreading the pain of POP.
Freelance journalist Kia Hansen spotted a shout-out in a journalists’ forum from a commissioning editor on the features desk urgently seeking a woman who can do a headstand. Kia put forward her friend Vicky Kidd, 41, an avid yoga fan. The Mail promised £150 for the case study, plus a £50 finder’s fee for Hansen.
Says Hansen: “Vicky lives in Sussex. She is a single mum and so was delighted as she really needed the money. She took a day off work to travel up to London for a long day shoot. This was almost a year ago and they haven’t used the feature, so she hasn’t been paid – not even her travel expenses. So she’s lost out on money, just because the Daily Mail has changed its mind.
“It’s an incredibly unfair system and I refuse to agree to those terms now – I certainly wasn’t made aware at the time that it was payment on publication, and would never have agreed to it, nor put my friend in this position. It has made me feel guilty and responsible through no fault of my own.”
Since then, Hansen says she has noticed that they put “payment on publication” on their shout-outs, leading her to believe that they must have had other complaints about this unfair system.
One freelance who spoke to Press Gazette on condition of anonymity – like so many, they are afraid of being blacklisted – said: “I have two magazine features that ran earlier this year for which I have not yet been paid, and a feature for the Guardian that has now been outstanding for over nine months.
“I write regularly for one magazine that has never yet paid me on time. When I chase, I am always told the invoice has been mislaid, the person who is dealing with it is off sick or it has gone missing in a move to a new computer system. I live in hope that one day I will be paid according to the contributors’ guidelines.
“What is galling about the Guardian is that the terms of the commission and the word count means it ends up taking a lot of time for a low rate of pay. It’s not good to then wait for months to see when – or if – it will see the light of day.”
Perhaps unsurprisingly, no commissioning editors contacted by Press Gazette wanted to speak out on the record about the practice of POP.
But one, speaking on condition of anonymity, says: “During ten years commissioning for The Sunday Times, I published nearly all of what I commissioned.
“However, there were occasional stories that unexpectedly got binned by others over my head. When that happened it was all but impossible to get my contributors paid – the inference was always that clearly both I and the person that I had commissioned had acted stupidly thinking that the story would work in the first place.
“A couple of times I made a stand, but was told in no uncertain terms that I would be shown the door, if I persisted. On other occasions, I tried to compensate contributors by paying them a bit extra for their next couple of pieces of work. The bitter truth is, however, that nearly all newspapers are terrible at these basic business practices and treat freelances abominably because they know that they can get away with it.”
And another, who also freelances in her own time and is therefore both poacher and gamekeeper on this, said: “We all have to stick together on this one – publishers can’t operate without freelances. And contrary to what I’ve read on forums, when commissioning I have never been told to hold payment for publication, during years at several leading magazine publishers and a national newspaper.
“Of course, that may not be everyone’s story but I wonder if it’s badly organized commissioning editors trying to juggle budgets – we are put under a lot of pressure to balance the books and, let’s face it, we’re all much better with words than numbers.”
The legal position
So what is the legal position?
A freelance journalist operates a business in his or her own right, says NUJ president Tim Dawson .
“They are perfectly entitled to set their own terms of business, and to say: ‘I shall invoice when I supply the work and my invoice will be payable within 30 days.’ It’s absolutely within the right of a freelance to do that, just as it is within the right of a publisher – and I’m talking legally, not morally – to say: ‘The deal is, you give us the material and we’ll sit on it for as long as we want, we’ll publish in our own sweet time, and we won’t pay you until then.’”
Where it becomes legally troublesome, says Dawson, is where neither side has said what their expectations are. And if it came to a dispute, it would probably be settled upon what were the known terms of trading with that organisation, he says.
He adds that for many years he wrote every week for the Sunday Times and what he wrote, “broadly speaking”, they published. “So if they sat on a piece for six months I’d be entitled to say: ‘Look, I normally write a piece, you publish it – unless it was rubbish – so this disturbs our normal terms of trade.’”
Of course, there are some with a good record on paying promptly. While one or two freelances, such as the one quoted above, told Press Gazette that even the Daily Mail – who many cite as being good payers – can sit on invoices for a long time, freelance health writer Angela Dowden tells Press Gazette: “I don’t find that – I think this has happened once with Femail (and a kill fee with them, too) but not with Health.”
After reflection, she adds: “But it may be because I do tend to wait a while before invoicing – I’m intrigued how various freelances seem to have different experiences with the same publications and even sections.”
Another freelance, Georgina Fuller, says: “I hate to sound smug but The Telegraph has just paid me for an article which hasn’t yet run. Think this may be the first time in my eight years of freelancing that this has ever happened!”
She adds: “I might even treat myself to some Aldi champagne to celebrate.”
Veteran freelance Claudia Connell, who writes regularly for the Daily Mail and its Saturday supplement Weekend, says: “I’ve been freelancing for 18 years and – as a point of principle – I will not write for anyone who wants to pay on publication, because there is a very real chance, especially with monthlies, that I may wait six months for my money, or even not be paid at all.
“Freelancing is precarious at the best of times, I need to know that my invoices will be processed quickly and I choose only to contribute to publications I trust to do that.”
Catherine Ball is similarly impressed with Mother And Baby. She says: “They are excellent at paying straight away regardless of how long before publication. I once sent an invoice after filing on a Wednesday morning and they paid me on the Friday.”
So what is the solution for those who do find themselves being forced to accept payment on publication terms? That’s less easy to say.
The first point is that, of course, you are not obliged to accept terms of trading that you deem unreasonable.
Chris Wheal, who runs an editorial consultancy with wife Kate, has been a journalist for approaching 40 years. He takes a hardline approach and took on the Guardian some years ago, as a result of which it agreed to stop sitting on his invoices. These days, he writes for companies and organisations that do not seek to impose such terms upon him, and if they are late in settling his invoice, after 30 days, he imposes late-payment interest. If it drags on, he adds a penalty fee, as he is legally entitled to do.
Wheal says that he refuses to work for publications or companies that are unable to keep to their obligations under the Late Payment of Commercial Debt (Interest) Act (1988).
When asked if that limits his earning potential, Wheal laughs. He says he has had criticism in online forums for journalists for speaking out and telling people that they only have themselves to blame if they accept onerous or unfair trading terms.
Says Wheal: “Despite the abuse from the whingers, you’re better paid – and paid on time – if you stand up for yourself.”
There was a thread about how much people earn in one forum, he says. “I didn’t chip in because I am so far away from what everyone else was saying it could only have come across as boasting. But it’s not boasting – it’s pragmatism.
“I have a family house in London and one of the kids is at university so I need to earn proper money in order to pay the mortgage, put food on the table and have the occasional holiday. That’s not cheap, so for me journalism is not a hobby or some kind of calling or vocation. It’s a means of earning proper money – and that necessitates working with people who pay well, and who pay promptly.”
So the argument that by being blacklisted or deemed a troublemaker doesn’t hold water, Wheal reckons. Quite the opposite, he argues: “I have always been firm on contracts, rates, payments and so on.”
He shares with Press Gazette a recent email he was obliged to send to a regular client. It says: “Dear all, my invoice remains unpaid, despite emailed promises that it would be paid two weeks ago. It is late.
“I have no option but to charge late payment interest and fees again. I have done everything I can to help you pay this on time, sending reminders and chase-ups. I am at a loss to understand why this was not paid on time. 30 days credit is more than ample. You are my only client unable to pay invoices on time.”
Here is what the NUJ has to say on the matter: “Clients who pay late must by law pay compensation and penalty interest.
“The Late Payment of Commercial Debt (Interest) Act (1988) was amended in 2002 to include fixed penalties in addition to interest. For debt of less than £1000 the penalty is £40, rising to £70 for debts up to £9,999.99 and £100 above that. Interest is payable at 8 per cent over Bank of England base rate. The penalties and interest apply to all businesses regardless of size.
“The payment clock starts ticking when you deliver the work, or on the day when your client has notice of the amount they owe you, whichever is the later. The client then has 30 days to pay – unless the freelance and the client agree on a reasonable alternative period. Clients must not pressure freelances or attempt to impose unreasonable payment terms.”
While it recommends stipulating on your invoice that payment is due within 30 days, after which interest and fees are chargeable, it points out that you are not legally required to do so; the law applies regardless. (There is a useful late-interest calculator on the NUJ website to assist freelances in chasing late payments.)
The industry response
What do the newspapers themselves say about the matter? For the most part – nothing. Press Gazette contacted all of the nationals for their view on the practice. Only two publications – the Guardian and the Sun – commented on the record. The system at the Sun is that it pays within 30 days of a desk head signing off the payment.
A Sun spokesperson told Press Gazette: “Every desk recognises the value our contributors bring to the paper and to our online operation and therefore makes every effort to ensure they’re treated with the respect they deserve.”
In fairness, while a couple of freelances whose examples are given earlier in this piece, have had delays in payment by the Sun, a number who spoke to Press Gazette said that the Sun was one of the “good guys” when it comes to pay and settlement, which might go to show the fact that terms vary so much from individual to individual and from desk to desk.
What many have said to Press Gazette is that what they want is a fair approach – namely, payment within 30 days of filing – and for that approach to be applied uniformly.
Initially, a Guardian News and Media spokesperson referred Press Gazette to its terms and conditions for contributors as published on its website.
But when the Press Gazette tackled them about the case of the freelance quoted above who has waited nine months for her work to be published – nine months with no pay – the spokesperson came back with the following statement: “Our terms and conditions for contributors are on our website and state that the Guardian will make payment within 30 days of publication, unless otherwise agreed at the time of commission – for example in cases of a longer lead time – where we may agree to pay sooner.
“If for any reason there is a delay beyond the agreed time, we urge contributors to contact us so we can investigate and ensure correct and prompt payment. We sincerely apologise for any inconvenience caused.”
At the Mail on Sunday, a senior employee said payment on publication is common with news stories when a freelance may offer a story “on spec” to see if it is used on Sunday. A holding fee may sometimes be paid to compensate the freelance for not offering it elsewhere and the publication fee may be more substantial if the story is “used big”.
With regard to features, he says that being news-focused, the title tends not to sit on things for a long time, though of course there is some variance between sections. He points out that [Sunday supplement] You magazine, because it does have a long lead time, often pays on delivery.
“Articles might sit on what we call stock and in accounting terms, where we’ve paid for an article for You magazine but don’t end up using it for weeks or even months, we can only account for it for taxation and auditing purposes upon publication”, that is, where the newspaper can tag the payment to a published piece.
He adds that, because features tend to be news-related, the situation rarely arises that a freelance would be chasing, asking where their money is.
“The worst-case scenario is that we end up not using a commissioned article and paying a kill fee of half the amount, but it rarely arises and the freelance would generally know at time of commission whether there was any chance of that happening.”
Communication is key, he says, and they have a good relationship with their regular freelances – “I’d be surprised if you find any of our freelances that were aggrieved about how we treat them”.
And Bauer Media confirmed that it has indeed moved to a payment on publication system for its writers, telling Press Gazette: “Some of Bauer Media’s titles [including what it calls its ‘true-life titles’] have moved on to the Censhare system, which triggers payments on publication for those working through the contributor system. When the issue is completed, the system automatically generates the freelance/picture agency payments.”
While Bauer Media was anxious to draw a line between “contributors” and freelances shifting on a day rate, the problem here, of course, is that the system for external contributors makes no distinction between professional freelances who help fill their issues and readers who have phoned their story in following a starburst or “come-on” in a magazine.
When told about this, one freelance who said that Bauer is sitting on “a pile of of my invoices” said: “That seems hardly a fair way to treat your professional staff simply because we are freelance; their in-house writers don’t have to wait months for pay so why should we?”
What can freelances do?
So if the practice is legally dubious – unless specifically outlined and agreed at time of commission – and morally questionable, what can freelances do about it?
The first measure is to be like freelances such as Chris Wheal, Claudia Connell and others who kindly spoke to Press Gazette for this piece, and simply refuse to work under those terms. Many will say, ah, but they can afford to be picky, but what is for sure is that, unless freelances stand up for themselves, assert their rights and refuse to be cowed, the practice will continue.
Back to NUJ president Tim Dawson: “If you’re a big-name writer whose work is considered highly desirable, and you can dictate your own terms, or the publication is desperate for a piece that only you can do, then you can say: ‘I expect payment within seven days,’ or whatever.
“The problem is for most of us, we feel we have a tenuous grip on getting further work and if we’re the least bit arsey, we’ll be put on ‘The List’ that says ‘never accept their calls, never reply to their emails’. There is a terrible imbalance of power between publishers who have it in their gift to offer you work and freelances who are f***ing hungry.”
He has practical advice: “When it comes down to what are the agreed terms of trade, it all starts to get a little murky. The wise freelance maintains a website that has a page that says: ‘My terms of trade are that I never sell my copyright, I licence people to use it, I never licence people without there being explicit paperwork, I invoice upon supply of material and I expect payment within 30 days of supply unless my material is deemed to be in some way unsatisfactory.’
“So if there is a dispute, they can say: ‘Well, my terms are, or should be, known; I publish them on my website.’ Better still is to get the publisher to agree to that by exchange of email.”
Of course, that does not help those freelances afraid of losing future gigs by being “arsy”, he says: “That’s the legal position, but the way things are going is that publishers are becoming shittier and shittier and think they can get away with more and more.”
Being bold, though, and refusing to be a pushover works for some freelances, such as Connell and Wheal, quoted above.
Another long-standing writer and freelance who’s worked for, among others, the Mail, Mirror, Express, Time Inc, Bauer and Nat Mags, also takes the no-nonsense approach. She tells Press Gazette: “When I’m pitching anything, I have this small print at the end of my email. That way, no one can try to enforce POP or any other bad terms after commissioning (including all rights grabs).
“Plus if they don’t pay up, my terms RE interest etc are clearly stated. It’s not perfect, but it helps set your stall out from the start…
‘Unless specifically stated to the contrary and agreed in writing by both parties, conditions for pieces submitted for publication are as follows: payment on submission, one use, first local serial rights only, non-exclusive, copyright retained by author, separate fees and charges for images, syndication, apps and internet usage (in whole or part) by separate and specific agreement, one paper copy/final PDF to author, kill fee 100 pre cent commissioned fee, reasonable expenses to be agreed.
‘Any balances not settled within the statutory 30-day period are liable to interest charged at 8 per cent above base rate under the Late Payment of Commercial Debts (Interest) Act 1998 (amended March 2013), plus a fixed fee for administration costs.’”
Many reading this will feel that more freelances need to follow their example and that of NUJ member of Punteha van Terheyden who is prepared to stand up and be counted by refusing to take non-publication and a 70 per cent loss of fee without a fight.
In the course of researching this piece, Press Gazette encountered some hostility towards the NUJ, with a minority castigating it for not doing more. Dawson objects, pointing out that the NUJ is not a foreign body – it is its members he says.
“People ask, well, what is the Union going to do about this?
“What we have been trying to do is to educate our members on this question of reasonable expectations in working as a freelance journalist and to insist upon reasonable minimum rights. It’s an uphill struggle and we’ve got more to do, but members must also play their part.
“Unless individuals are prepared to stand up and say: ‘I won’t accept payment in six months’ time’ or whatever, it’s very hard to see how the general atmosphere of the industry can be changed.’”
© Eugene Costello 2018
Eugene Costello would like to thank the many freelances who contacted him in researching this report. He would especially like to thank members of the Facebook group A Few Good Hacks who generously donated money to go some way towards recompensing him for the days spent working on this report. The irony of impoverished freelance journalists chipping in towards the rent for an impoverished freelance journalist working on a report for pay and conditions for impoverished freelance journalists shall, he hopes, not be lost upon anyone…