All eyes are on you if you’re in the limelight or managing someone who is. But the definition of “limelight” now extends far beyond movie stars and TV personalities.
There are social media influencers, public image consultants, broadcasters, high-profile vloggers and bloggers. They don’t even need to leave their homes to be considered media personalities.
Traditionally, only advertising, publishing or marketing businesses needed media liability insurance. But with easy media access and interconnectivity, a media blip could turn into a viral nightmare for almost anyone.
Depending on how your business is classified by your insurance company, your commercial general liability policy may not cover your claim. That’s where media liability insurance enters the scene.
Who needs media liability coverage?
Here are just some of the industries that should consider coverage:
- Marketing
- Advertising
- Broadcasting
- Entertainment
- Publishing
- Software (that disseminates information)
- Photographers
- Stock photography and licensing
- Reviewers
- Reporters/journalists
- Bloggers
- Vloggers
- Independent authors or other writers not covered under an employer’s insurance policy
- Freelance writers
- Social media influencers
- Celebrity or high follower-count media accounts
Media liability insurance – a more specific policy
Media liability insurance is a form of errors and omissions (E&O) insurance that helps protect against liability claims such as defamation, misrepresentation, intellectual property infringement and any number of liability risks posed by engaging online. Even if you’re innocent, you must respond to a lawsuit and mount a defense. It can be an expensive endeavor if you have no help at all. That’s where media liability insurance comes in.
Media liability normally responds to claims for accusations like:
| Breach of Contract | Material, actual, minor or anticipatory breaches can occur and usually are involved in larger contract disputes involving intellectual property or other specific agreements. |
| Trademark or service mark infringement; unfair competition | Involves using another brand’s logo or trademark slogans or even misrepresenting website addresses that look similar with the intent to misdirect web traffic. |
| Defamation of character (libel or slander) | Libel is when you make a false comment or statement intended to damage a person’s reputation. Slander is when you publish a false statement intended to damage a person’s reputation. |
| Infliction of emotional distress or outrage | A post or comment that causes a person emotional harm, trauma or negative psychological effect. |
| Intellectual property infringement | Creative work, invention or idea is too similar to someone else’s work. |
| Invasion of privacy | Post personal information about another. |
| Negligence, misrepresentation, misstatement | Involves a claim that is indefensible or misleading; sometimes called false advertising. |
| Personal and advertising injury | The information posted results in harm to an individual’s personal or professional image, reputation or brand. |
| Plagiarism | Copying another person’s work in whole or in part (intentionally or unintentionally) and passing it off as original. |
Publisher, marketer, advertiser — you need more than commercial liability
Media liability often applies to businesses that are primarily engaged in advertising, marketing, publishing, photography, broadcasting or other media-related activities. Their risk is higher since they’re in the business of publishing information that people rely on as expert advice or information.
Liability comes with the territory when you’re writing about other people. And to double-down on that concept, when you write about other people, you’re also writing about their brand (in the case of a celebrity or influencer). That can mean you’ve not only disparaged or slandered that person but their brand too. You could find yourself in a multilayered lawsuit.
What you do (and what you don’t do) matters in insurance
Media liability insurance applications will ask you some detailed questions about your business activities. The insurance underwriting department needs to decide what kind of risk you are — and if they’re willing to take you on as a risk. They do this because some publishing companies and staff are in the business of shock media or undercover investigative journalism, which are both high on the lawsuit list.
For example, a standard application might ask a reporter about the types of interviews they engage in and whether they are recorded and if those recordings are hidden from the person being interviewed. These activities pose high risks for all kinds of lawsuits, such as recording without consent (illegal in many states) and defamation or coercion.
Lots of new ways to publish can create lots of new liabilities
Also with respect to publishing (that’s a wide range of businesses considering social media, blogging, vlogging, influencing are included along with traditional television, marketing and publishing), insurance companies also want to know what kind of fact-checking is done.
If you’re into saying whatever you feel like or taking a questionable “fact” and running with it for the purpose of gaining followers, you might be considered a shock jock brand. These require different lines of insurance and may limit the insurance companies willing to sell you an insurance policy. Media liability has specialty lines of coverage for riskier activities — but you’ll pay extra.
Employees can be part of the liability
No matter how much you think you’re controlling the messaging online, you should also consider that your employees could cause the liability. If your employees are posting about your business (think hashtags) or under your account (think followers), they could slip up and say something improper. It may be completely innocent but that could be construed as a lack of training, or that these are the opinions of your business.
This is another reason to review your risk management planning and employee handbooks. You should have an online etiquette policy as well as diversity training. Don’t discourage social media use — but do educate staff about how to properly communicate online.
The coverage “gray zone”
Not everyone will need media liability coverage. But there is a gray area where gaps in coverage can occur depending on the situation. Here are a few coverage options that may protect you in different situations.
- Commercial general liability (CGL) covers some issues under personal and advertising injury, but make sure the coverage amount is high enough and broad enough. You might want to consider an umbrella to top it off.
- Cyber insurance may help protect you against losses such as network security issues, data loss and personally identifiable information (PII) breaches, but it will not step in to cover liabilities involving content you’ve created or posted.
- Personal and advertising injury on your general liability policy may step in to cover a falsehood or a misleading advertisement you’ve made — if your business isn’t normally engaged in a media-related capacity. But the lines are blurring regarding what is classified as a business engaged in media, marketing and the like.
- Directors and officers (D&O) may kick in, depending on the coverage you have and who did the posting. If your coverage isn’t broad and it excludes certain job roles, then you may not be covered for all employee conduct. If this was an issue that can be traced to poor decision-making or a lack of policy, then the board may end up being named as part of a lawsuit. The D&O policy would trigger, but it wouldn’t necessarily offer full coverage.
- Employment practices liability insurance (EPLI) may help in the event that your media liability issue is related to a post or statement made about your employee (who then files a harassment or discrimination lawsuit against your company). But it likely will not cover you for disparagement or undue emotional distress caused by the post if it involves your company or those you employ. It really depends on the lawyers and the way the claim is filed. Either way, this is a situation where you don’t want coverage
The price to defend and the price to settle
Even if the alleged wrongdoing was unintentional, or entirely untrue, you must defend yourself in court. Lawsuits can take years to resolve, which is why most insurance companies look to settle out of court when possible. Whether you defend or settle, it’s going to be expensive.
- Media liability can help with the cost to retain attorneys experienced in the field and mount your defense.
- Media liability coverage can also help with negotiating a settlement and payment for the settlement expense.
Talk to your insurance professional
If you’re directly involved in media or could possibly be classified as a media business, you need media coverage. A commercial general liability policy will not cover you under advertising and personal injury, and it has exclusionary language for this.
If people look to you for reliable information (which is a compliment!) you need to think about stepping up your coverage. Talk to your insurance professional and your lawyer to make sure you have the specific coverage you need for the type of business you do.
For more information
For more information, please contact Rina Corigliano-Hart, Director of Client Engagement and Outreach, at RHart@OneGroup.com.
This content is for informational purposes only and not for the purpose of providing professional, financial, medical or legal advice. You should contact your licensed professional to obtain advice with respect to any particular issue or problem. Please refer to your policy contract for any specific information or questions on applicability of coverage.
Please note coverage can not be bound or a claim reported without written acknowledgment from a OneGroup Representative.
Written content in blog post: Copyright © 2021 Applied Systems, Inc. All rights reserved.