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Media Liability Coverage: How to Do It Wrong

As the client base for media liability insurance continues to broaden, here are three approaches you should probably avoid when prospecting for new business.
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As the prospective client base for media liability insurance continues to broaden, insurers in the business are doing their best to think outside the box.

Due to the types of individuals and allegations that are involved, “our claims can be very interesting,” says Jason McDonald, media liability product manager at Philadelphia Insurance Companies (PHLY). “That really forces us as an insurer to be creative with our coverage options.”

As an agent, what should you be looking for in a media liability coverage form? Lou Scimecca, senior vice president, media/entertainment product manager, AXIS Capital, says media liability claims come in four main flavors: defamation, invasion of privacy, copyright or trademark infringement, and errors & omissions. Coverage, then, must follow suit, he says: “You couldn’t have a viable media insurance policy or product if you took one of those things out.”

When securing media liability coverage for your clients, here are three approaches you should probably avoid:

Assume a general liability or tech policy covers it. “A common gap that I believe to be pretty prevalent is the lingering assumption that you can find this specialized coverage in your commercial general liability policy,” McDonald says. “The CGL form has undergone a lot of revisions, with new exclusions that target specific media industries.”

That could mean excluding media liability claims resulting from activities as broad as “doing business on the internet,” McDonald says. “A fair amount of our insureds and agents just aren’t aware that pieces of this exposure are really carved out of their GL policy.”

Regina Williams, vice president at OneBeacon Entertainment, observes GL carriers excluding personal and advertising injury from the form as well, which “leaves people open when they have that exposure,” she says. “They could have no coverage. You have to see if a media policy could get that coverage back.”

Williams also notices many media exposures being erroneously placed on technology professional liability policies only, such as advertising agencies that create content for others but offer ancillary technology services to create additional revenue. When you skip the media liability policy, “that client is losing some really necessary media coverage they should have—that’s not being provided on a true tech policy,” Williams explains.

“Do your due diligence,” McDonald says. “Make sure you’re at least presenting the coverage options your insured may need, whether they decide to purchase them or not.”

Use a form that places restrictions on content format or time period. At the turn of the century, it would have been difficult to imagine a content-sharing platform like Snapchat. As modes of content dissemination continue to push the boundaries of traditional publishing, make sure your client’s media liability policy doesn’t place restrictions on types of distribution.

“If somebody’s looking at a policy that is limiting modes of dissemination, that’s not good,” cautions Scimecca, who encourages agents to seek policy language such as “any mode or method of dissemination, including electronic and digital.”

Similarly, Williams emphasizes the importance of securing media liability policies on an occurrence rather than claims-made basis. Consider, for example, an author who publishes a book and obtains a media policy for the content and artwork.

“If they buy an occurrence form, that form’s going to cover that book—they don’t have to renew the policy, they don’t have to worry about it,” Williams explains. “If they’re on a claims-made form, because they have to report the claim during the policy period, then they’re going to have to renew that policy until they’re comfortable that there won’t be any claims.”

Place it with a different carrier than other professional lines. Many carriers are starting to adopt what McDonald calls a “modular approach” to writing media liability insurance: “ala carte-type policies” that typically involve cyber coverage as well as professional liability for both technology and miscellaneous services.

“As the claims and exposures change and sort of blend and overlap with one another, the policies have to do the same thing,” McDonald says—and when you can place all these policies with the same carrier, everyone wins.

“On the back end from the insurer side, the more hooks we have in the exposure, the easier it is to defend our insureds,” McDonald explains. “That way, we’re not splitting hairs with another carrier if there’s a cross between a cyber and media claim and we’re only on one part of the risk.”

“What agents and their clients need to look for is a company that can offer a full suite of a blended product,” Scimecca agrees. “If you have two different companies, one insuring media and one insuring tech, and there’s a grey area in a claim, you may be in the middle of a fight between two carriers. But if you bundle the coverage together with a single carrier, regardless of which side of the fence that claim falls to, it’s that carrier that’s going to cover it.”

If a client’s tech services are ancillary to the core media business they perform, such as that ad agency that primarily develops content for third parties but provides IT services on the side, Williams recommends endorsing a core media policy with technology professional liability coverage.

Just be mindful of limits when you opt to place all professional risks on the same policy, Williams cautions—particularly when it comes to cyber. If the client stores a low number of records, they might be OK. But otherwise, “if you have a cyber breach and you have full limits for a media cover and cyber cover, and you blow through the limits because of a data breach, you have no media coverage left because the limits are gone.”

Jacquelyn Connelly is IA senior editor.

Friday, September 23, 2022
Publishers Liability