In the recent Florida Supreme Court case of Penzer v. Transportation Insurance Company, the court ruled that the standard General Liability policy form covers lawsuits alleging that fax blasts are in violation of the federal Telephone Consumer Protection Act (TCPA).
In this case, a class action lawsuit was filed against Nextel (or its agent) for sending unsolicited fax blasts in violation of the TCPA. The TCPA is a federal law making it unlawful to use a fax, computer, or other device to send an unsolicited advertisement to a fax machine. Each fax sent in violation can result in the greater of actual damages or $500.
Transportation Insurance Company argued that the “advertising injury” coverage under its General Liability must be for “oral or written publication of material that violates a person’s right of privacy”. And, in the present case, no private content was communicated in the advertisement.
However, the court opined that the “right of seclusion” is a right of privacy that is provided for under the TCPA. Therefore, the “advertising injury” coverage under the General Liability form does provide coverage for sending unsolicited fax advertisements in violation of the TCPA.
In the Penzer case, the fax blast violation occurred in 2003. Since that time, the insurance industry has adopted form CG 00 67 03 05 entitled “Exclusion-Violation Of Statutes That Govern E-Mails, Fax, Phone Calls Or Other Methods Of Sending Material Or Information”. This policy endorsement should preclude coverage in the majority of these cases.
Source: John Sadler
The standard General Liability policy covers “personal injury” and “advertising injury” unless the insured is in the business of advertising, broadcasting, publishing, or telecasting. For this reason, there is no coverage for IT firms that are in the business of designing websites, determining content, providing content, or providing internet access.
Why do tech firms need coverage for “personal injury”? First of all “personal injury” coverage may be needed to protect a tech firm against an allegation of slander, libel, or oral or written publication that violates a person’s right of privacy. It is not too difficult to see how a tech firm could get sued under these circumstances.
In addition, coverage may also needed for “advertising injury” in the event of an allegation of the taking of another’s idea in your advertisement or infringement of copyright, trade dress, or slogan in your advertisement.
The key word is “advertisement”. There is no coverage for infringement of copyright, trade mark, trade dress, or slogan unless they occur in your advertisement.
An exclusion in the policy form eliminates coverage for injury arising out of electronic chat rooms or bulletin boards that the insured hosts, owns, or excercises control over. In addition, there is another exclusion arising out of the unauthorized use of another’s name or product in your email address, domain name, meta tag, or similar tactic used to mislead the potential customers of another.
It is obvious that the standard General Liability form does not adequately protect tech companies or IT professionals against these imporant exposures. As a result, coverage can be sought as part of a Professional Liability or Errors & Omissions policy form.
These policies can add back essential coverages such as for those tech firms in the business of advertising or publishing, violation of a person’s right of privacy or undue publicity, intellectual property infringements, etc.
It is strongly recommended that tech companies or IT professionals deal with a tech insurance specialist to make sure that their coverage needs are addressed.
