Authors warned not to sign 'morality' clauses

Contract clauses giving publishers the right to drop authors who act "immorally" are becoming more common, The Bookseller has been told.

The demand is particularly prevalent in the US and Canada, it is understood, but according to the Society of Author’s chief executive Nicola Solomon, and a number of agents The Bookseller has spoken to, such clauses are becoming more widespread in the UK too, partly following the high profile case of right-wing commentator Milo Yiannopoulos, who is currently suing Simon & Schuster US for $10m for dropping his book.

Literary agents and the Society of Authors have told The Bookseller they are advising writers to resist signing the clause and warned that their increasing use comes at the expense of freedom of speech.

"Many authors” are now being asked to make "wide and sweeping” indemnities, according to Solomon. “We do see these (clauses) and we don’t like them,” she told The Bookseller. "They are particularly prevalent in the educational/academic sector [in the UK], but are spreading beyond that." 

A number of agents have said the clauses are cropping up more often in trade publishing too where “high profile” authors are involved, across non-fiction, children’s and fiction. 

Examples of morality clauses provided by the SoA include asking authors to agree “at all times to adhere to the highest ethical standards”, while another asks writers to “not do or omit to do anything or become directly or indirectly involved in any matter whatsoever which may in the publishers’ sole opinion be damaging to the reputation of the publishers”.

Publishers' inclination to use these kinds of clauses will be greater following the high profile case of right-wing commentator Milo Yiannopoulos, agents have suggested. S&S US terminated the former Breitbart editor's contract in February after a radio interview in which he appeared to condone sexual relations with young boys. However, the writer has since attempted to sue the publisher for $10m for cancelling the deal, arguing they did so not because of the content of the book, but because of his public perception.

An agent who preferred not to be named said: “[The clauses] make complete sense if you're paying a lot of money for a celebrity, the success of whose book is predicated on their personal brand. If the author were to do anything that would bring that into disrepute - drugs, sex, assault, airing of offensive views - and that led to the book not selling then you can completely see why publishers would be keen to have a clause that enabled them to cancel the contract and claw back money.”

They added: “I can imagine post-Milo why publishers might want to make them more widespread. Were I a publisher and investing large amounts in an author I would definitely want more ways of protecting myself than are standard.”

Curtis Brown’s head of book contracts, Nicholas McDermott, said he’d seen "a number" of publishers in the UK, US and Canada try to incorporate morality clauses into their contract templates, all of which the agency has rejected. The inclusion of such clauses in contracts had “crept up” in the UK, especially with young, "high profile” authors, he said.

He agreed the case of Yiannopoulos was “definitely a part" of why morality clauses were creeping into contracts, along with the experience of Penguin Australia, which published a cookbook by wellness blogger Belle Gibson who reportedly lied about having brain cancer. The publisher went on to be fined A$30,000 by Australian regulator Consumer Affairs Victoria.

Meanwhile the SoA believes the increase in the clause's inclusion in the UK’s academic and educational sector follows the fining of academic publisher Oxford University Press arms in East Africa and Tanzania for “corrupt practices” relating to education projects in the countries in 2012.

Like the SoA, McDermott was vehement in his opposition to such clauses, saying they could lead publishers into “a very dangerous area” at the expense of free speech. 

"We have been told by publishers that this relates to problems in the children’s market where a publisher doesn’t want to be forced to publish a book if the author has been arrested for, say, child sex offenses. Which of course is understandable,” he said. "The difficulty comes in determining when exactly the clause should apply. For example, is a driving offence sufficient grounds to cancel a contract? Or would an offence count if it was unrelated to the nature of the of the book? Is an accusation or charge sufficient without any court proceedings?

"We have to be vigilant to protect authors to ensure that there are no 'morality police' watching over controversial authors. Often a controversial author is hired because they are controversial, and given recent attacks on the Human Rights Act we need to be careful about protecting our freedom of speech. Publishers should be protecting this right, not helping to self-censor speech or using an author’s behaviour as a mechanism to get out of a potentially unprofitable contract. If we aren’t careful a morality clause could lead publishing into a very dangerous area."

Sam Copeland, agent at Rogers, Coleridge & White, also told The Bookseller that the agency was advising authors not to agree to the clauses. "Essentially, we have seen a small increase in an attempt to insert this type of clause into contracts, mostly from the US, which we are resisting,” he said.

Janelle Andrew at PFD agreed US-based publishers were becoming "increasingly rigorous" on this issue, including fiction publishers, which she added was "alarming".

"In light of what happened with Milo Yiannopoulos it seems they are determined to crack down on any personal infractions which could damage the potential sales of a book,” said Andrew. "I think this is a direct result of authors themselves becoming as much of a commodity as their book, and especially in non-fiction."

She continued: "In my opinion, the idea that someone's career could be damaged due to immoral behaviour is dangerous because morality is subjective and as agents, it is our job to remove the subjective from contracts as this can be open to misinterpretation, or even in a worse case scenario, abuse."

Solomon said the remit of such clauses was often “impossibly wide” and the SoA would ideally advise any author to insist the clause is removed, because it does not advocate “reasonable” terms.

"These seem to us far wider than is necessary to protect a publisher’s legitimate interests. They are impossibly wide: an author could be in breach for being indirectly involved in something which the publisher thought may be damaging to its reputation,” said Solomon. 

"We particularly dislike the fact that the test is often not objective but allows the publisher in its sole opinion to decide that something is damaging. We suggest to authors that these clauses be deleted in their entirety and, failing that, that they ask for assurances and amendments that make it clear that the provision would be invoked only in extreme and cynical cases.”

An OUP spokesperson said it did not recognise examples of morality clauses detailed above but confirmed "many" of its author contracts included specific references relating to not committing bribery or fraud, in keeping with the requirements of the Bribery Act 2010. The company added: "Some contracts refer to our Partner Code of Conduct, which was created to give our business partners a clear view of the values and principles that inform all of our work. In working with partners we want to uphold our mission and values, make sure everything we do is ethical and lawful, and ensure our business relationships are open, honest, and successful.”

The Bookseller asked a number of other publishers for comment on the issue, including Penguin Random House, HarperCollins and the Publishers Association, but all declined.