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Harlequin Enterprises is an imprint of HarperCollins and one of the most well-known publishers in the world, with even the general public calling their romances by their publishing house's name. Harlequin is also known as a publisher which is very open to working with new writers, as long as you follow their very specific guidelines.
What you may not know is that Harlequin also contracts with a large number of freelancers to work on editorial, art and other aspects of book publishing. Many of these freelancers have worked with the company for years if not decades.
Unfortunately, Harlequin (and by extension HarperCollins) has rolled out an updated independent contractor agreement containing some very troubling new terms. Under these terms, freelancers can never again critique or say anything negative about the company or anyone who works there. And this non-disparagement clause lasts forever, even after you're no longer under contract with them.
Here's the new clause:
13. Non-Disparagement. Contractor will not criticize, ridicule or make any statement that disparages or is derogatory of the Company or its affiliates, or any of their respective employees, officers or directors.
However, what's almost worse is the new language in the following clause, which states "The provisions set forth in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 13, and 14 shall survive any termination or expiration of this Agreement for any reason." That language means this applies even after you're no longer a freelancer.
Now you may be thinking this isn't a big deal. That if you want to freelance for Harlequin and HarperCollins you just need to accept these terms and be quiet. But HarperCollins is one of the Big 5 publishers – it's highly unlikely these freelancer terms won't eventually filter out to other publishers.
And it's also highly likely these terms will again try to find their way into author contracts. In fact, it's possible Harlequin is already including or considering including this clause in their new author contracts (if any Harlequin author has received a contract with this new clause in it, feel free to contact me).
In the USA, the Consumer Review Fairness Act protects consumers from non-disparagement clauses like this. Unfortunately, the act doesn't doesn’t apply to employment contracts or agreements with independent contractors.
However, that doesn't mean public pressure can't be brought against publishers which try to use contracts like this. And it's also disgusting that Harlequin and HarperCollins are rolling out contracts with this clause during a time of crisis. It's almost like they hoped no one would notice this change with all the chaos in the world.
I also strongly suspect this new clause is in response to what happened within the Romance Writers of America. As you may remember, that controversy started when an editor and author of a small publishing house essentially used RWA to try and punish Courtney Milan for her critiques of their racism.
People are paying attention to businesses which behave in bad ways during COVID-19, and using a contract like this is a perfect example of bad behavior.