No one would disagree that blogging has grown from a simple form of self-expression to an integral part of the content marketing sphere and has even become a sustainable source of income for many people. In fact, in December 2016, Impact estimated that 77% of online users read blogs, with a total of 346 million readers worldwide. On the strictly professional side, 36% of Fortune 500 companies had a public blog in 2016.
As is the case with all popular things, with the increased reach of professional blogging comes a greater incidence of lawsuits and claims. The Media Law Resource Center estimated that there were $17.4 million in court judgments made against bloggers by the end of 2014. It’s understandable that this would happen; many professional bloggers work independently and may not have a detailed understanding of the law or sufficient legal representation when they do end up in hot water. This developing market dynamic makes it even more important for bloggers - whether they’re working as part of a business or flying solo - to have professional liability insurance coverage.
If you’re looking for guidelines, unfortunately it’s not so simple
The biggest risks that bloggers with large followings face are, according to Bankrate, claims of libel, defamation of character, copyright infringement, and invasion of privacy. Depending on the blog in question, harassment and trademark infringement could also pose a risk, as well as charges of bodily injury resulting from products recommended in professional blogs. However, the biggest danger to bloggers comes from the fact that blogging cases don’t have the same legal precedent that more traditional media might have; in fact, courts have been very inconsistent about cases and the application of the First Amendment to blogging cases.
Let’s take a short step back. The Communications Decency Act of 1996 - which has been upheld by courts - established civil immunity for Internet service providers who post users’ anonymous works, such as YouTube, Facebook, Twitter, and other social media sites. Courts have also thrown out certain cases against online “shock jocks” and ranters, stating that such content is not to be taken seriously. But in stark contrast to these cases, a different case involving an anonymous blogger’s “vexatious comments” on Yahoo about professional golfer Phil Mickelson resulted in the court ordering the ISP to divulge the blogger’s identity. Though some cases have fallen under the protection of the First Amendment or anti-SLAPP statutes, at this point in time we have no way of knowing which blogs will and will not be covered. Even if there were a legal precedent in place to handle blogging cases, it wouldn’t mean anything if bloggers didn’t have the means - financial or otherwise - to defend themselves.
Just ask FLOTUS
In August of 2016, 70-year-old political blogger Webster Tarpley made headlines when he wrote a blog post stating that Melania Trump previously worked as a high-end escort. The British publication The Daily Mail subsequently posted a similar piece, and Trump sued both publications for defamation on September 1st. Tarpley and Trump reached a settlement with the judge refuting Tarpley’s bid to dismiss with, “There could be no more defamatory statement than to call a woman a prostitute.” Prior to the settlement, there was quite a bit of back-and-forth about the distinction between defamatory remarks asserted as fact and simple expressions of opinion. Tarpley’s attorneys defended him as only passing along allegations and rumors available on multiple other online sources, while Trump’s attorneys stated that the allegations were damaging and showed a “reckless disregard for the truth.”
There is a degree of ambiguity in this case: after all, there are countless gossip blogs that post rumors about celebrities that range from harmless to offensive to positively outlandish. Some believe that using phrases such as “rumor has it” or “some say” establishes that they are not asserting those statements as fact, while others only look at the remarks in question. Ultimately, the lack of precedent and the potential legal consequences - not to mention the possible reputation damage - make professional liability insurance a must for bloggers.
The case for professional liability insurance and additional coverage
“Blogging insurance” is not an established form of coverage, so it is crucial that bloggers have professional liability insurance and other forms of coverage if necessary. Even if bloggers are employed under larger agencies, there is no guarantee that their employer will protect them from liability claims. In addition, even if employees sign contracts accepting liability for their work, claims could still harm their employers, particularly in the reputation area. No one is immune to claims, and professional liability (also referred to as errors and omissions, or E&O) insurance will provide bloggers with the proper protection in the event of civil suits or claims.
Let’s work together to ensure you have the proper PL coverage. Contact a HUB Broker today to learn more about how we can help you to create a customized portfolio of insurance policies to cover all of your blog’s activities.