Does Your CGL Policy Provide Coverage For Invasion of Privacy Actions? The Answer May Turn On Whether Privacy Rights In Your State Are Conferred By Statute or By Common Law.
While some commercial general liability policy provisions are standard, others vary considerably from carrier to carrier. This tends to be particularly true in areas where liability law is changing relatively quickly. One example is coverage for invasion of privacy under a general liability policy’s personal and advertising injury coverage. And the variations in policy language, combined with state-to-state variations in the basis for privacy rights, may eliminate or significantly limit invasion of privacy coverage for some policyholders.
Some policies broadly exclude coverage for violation of a right of privacy created under any state or federal statute. While many jurisdictions recognize invasion of privacy as a group of common law torts, others protect privacy rights by statute. This broad exclusion may eliminate most or all invasion of privacy coverage in the latter states.
Other policies exclude privacy claims under the federal Telephone Consumer Protection Action (TCPA) or the CAN-SPAM Act of 2003 or any other statute that prohibits or limits the sending, transmitting, communicating or distribution of material or information. Still others exclude privacy claims under those federal laws or any “analogous” statute. The presence or absence of that single word may have a significant impact on the scope of the exclusion.
Policyholders with potential exposure in this area should understand the source of privacy rights in the jurisdictions where they do business and the scope of their privacy coverage. And policyholders with significant potential for exposure may not want to rely on their commercial general liability policy to manage this risk, but may want to consider a media liability or cyber-liability policy.
For more on this issue see my article, “CGL COVERAGE FOR INVASION OF PRIVACY: Recent Cases and Trends,” from the International Risk Management Institute’s CGL Reporter.
Posted In: Personal and Advertising Injury