Insurance for Bloggers

Bloggers can be sued. Whether the communication is protected by the First Amendment or anti-SLAPP statutes is irrelevant if there is no means for the blogger to finance his defense. Agents need to know if and about what their personal or commercial lines clients blog to assure the placement of proper insurance protection.

Individuals or entities presumably "harmed" by a blog's content will likely charge libel, defamation of character, and/or invasion of privacy in any subsequent suit. These are defined as "personal injuries" by the insurance industry and in the insurance contract (see "Personal Injury Equals Bodily Injury"). Other charges may include violation of copyright/trademark or publication of trade secret.

The status of the blogger directly affects the personal injury protection provided or available. Individuals blog at their own risk as there may be no personal injury coverage available to finance a defense, settlement or judgment; unless the proper endorsement has been purchased. Likewise, coverage for business entities hinge on exclusionary wording and endorsements that may be attached to the policy.

Personal Lines Clients
Unendorsed homeowners' policies do not provide personal injury coverage; it's not excluded, it's just not granted. Insurance Services Office's (ISO's) standard HO 00 03, for example, does not define personal injury nor does the Section II ("Liability Coverages") insuring agreement anticipate protecting against charges of personal injury. Coverage is limited to bodily injury and property damage; both defined terms with neither definition including "personal injury" as a component part.

In short, the cost to defend a personal injury suit and pay any resulting judgment is borne solely by the homeowner unless personal injury coverage is endorsed onto the homeowners' policy.

Garnering personal injury coverage, however, is as simple as attaching the Personal Injury endorsement - HO 24 82 (or any state-specific version) - to any of ISO's homeowners' policies. The HO 24 82 is readily available on a stand-alone basis or included as part of a package of enhancement endorsements offered by many carriers. Adding the personal injury endorsement on a stand-alone basis rather than as part of a separate enhancement package costs less than $25 per year with the premium ranging between $13 and $25 based on the liability limits carried.

Reviewing selected parts of the definition and exclusions contained in the HO 24 82 clarifies how the endorsement responds to personal injury lawsuits arising out of blog content. The "blog-related" parts of the personal injury definition are:

"'Personal injury' means injury arising out of one or more of the following offenses, but only if the offense was committed during the policy period:…
4. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; or
5. Oral or written publication of material that violates a person's right of privacy."

Blog-related personal injury exclusions include:

"'Personal Injury':
b. Arising out of oral or written publication of material, if done by or at the direction of an insured with knowledge of its falsity;
c. Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period;… and
g. Arising out of or in connection with a "business" conducted from an "insured location" or engaged in by an "insured", whether or not the "business" is owned or operated by an "insured" or employs an
insured…"

Four specific coverage requirements become apparent when reviewing this spotlighted wording:
• The claimant must have suffered personal injury during the policy period;
• For coverage to apply, the insured must be unaware that the information was false (truth is a defense against slander);
• The material causing the supposed injury must have been originally published during the policy period; and
• The blog must not be related to the insured's business.

Viewed in the light of this four-part test, coverage for blog-related suits seems rather narrow. To be protected, the publication of the offending blog and the supposed personal injury must be suffered during the policy period. Blogs don't necessarily have a "time limit." A blog posted today might remain accessible and viewable for several days, months or years before the "target"/claimant sees it or is harmed by the post.

Coverage applicability may depend on the question, "when is personal injury actually suffered?" Is it at the time of the publication; when it's read by the claimant; or when the effects of the blog are felt by the subject of the post? Knowing when personal injury "occurs" is of utmost importance in applying the terms of coverage.

For example, the blogger posts an article on December 1; the subject of the post reads the article December 6; the policy ended December 2 (and was renewed). Did the personal injury occur the day the post was made available to the public or the day the person read about themselves? Consider this, the victim runs or is the auto repair shop, three months after the post he notices that his receipts are dropping drastically; the owner attributes this to the blog that said he charges too much for his services. Did the injury occur when sales began to plummet?

Most courts hold that libel/defamation occurs when the information is initially published and available to be seen by the public. December 1 is the date of personal injury in the above example; so personal injury coverage for bloggers is not as limited as it first appeared.

Commercial Lines Clients
Unlike the homeowners' policy, the commercial general liability (CGL) policy includes personal injury coverage as part of the unendorsed protection granted to insureds. But the presence of Coverage B - Personal and Advertising Injury Liability - does not guarantee coverage against blog-related suits.

Like the homeowners' policy, the CGL contains specific personal injury exclusions that limit coverage. These are:
• Material Published With Knowledge of Falsity;
• Material Published Prior to the Policy Period;
• Insureds in Media and Internet Type Businesses; and possibly
• Electronic Chatrooms or Bulletin Boards (see discussion below concerning the applicability of this exclusion).

The first two listed exclusions line up with the previously detailed homeowners' exclusions and do not necessitate any further clarification. And just as in the homeowners' policy, there is also a business exclusion in the unendorsed CGL, however it is limited to insureds working in media or Internet businesses. Media and Internet insureds require a media liability policy to cover their blog exposure.

Does a blog qualify as an electronic chatroom or bulletin board (the fourth exclusion)? The policy does not define these terms, and when queried, media professionals tended to say that blogs differ from chatrooms and bulletin boards. A blog is viewed more as a "closed" environment where the blogger posts but the community is not necessarily participating in the content (other than to make allowed comments) where bulletin boards and chatrooms are considered communally participatory.

Since these are not defined terms, the application of the exclusion will be left to adjusters and the courts. If a blog does equate to an electronic bulletin board or chatroom, then this will essentially serve as an absolute coverage exclusion for business-related blogs (sponsored, approved or managed).

Coverage for blogging in the unendorsed commercial general liability policy tends to hinge on the application on the electronic chatroom or bulletin boards exclusion. If a blog does not fall within the definition, insureds should have coverage for blog activity subject only to the remaining exclusions. Should a blog be considered equivalent to such bulletin boards and chat rooms, then liability coverage may be non-existent, requiring an endorsement to provide the necessary protection.

Absent the listed exclusions, excess and surplus lines carriers may attach blog-specific liability exclusions.

Any business that has undertaken to create, sponsor or manage a blog has assumed the role of a journalist with the same responsibilities and liabilities. A media professional liability policy may be required to cover all the exposures created by this activity. Keep in mind, an Internet presence through a website is not the same as an active blog, chat room or electronic bulletin board and does not create the same burden or need for coverage.

Following

This series concludes Friday with a list of risk management considerations every blogger needs to consider when analyzing the potential liability created by their blog.

Blogging Series Series

1. Blogs Present Insurance Loss Exposures
2. Insurance for Bloggers
3. Risk Management for Bloggers

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