Media liability insurance: defamation, copyright and content claims

Media liability insurance is a form of errors and omissions coverage for businesses that create or distribute content. It pays defense costs and covered damages when someone says your content defamed them, invaded their privacy, copied their work or misled people who relied on it. The standard commercial general liability policy gives publishers, broadcasters and agencies much less protection for these claims than most owners assume, and the gap is written into the form.

Why the general liability policy falls short

Defamation and copyright claims are not new to the CGL. Coverage B (see Inside the CGL policy: Coverages A, B and C) pays for "personal and advertising injury," a defined list of offenses that includes publication of material that slanders or libels a person, publication that violates a right of privacy, use of another's advertising idea, and infringing another's copyright, trade dress or slogan in your "advertisement." A restaurant sued over a defamatory social post, or a retailer sued over a photo in its own flyer, often has a Coverage B argument.

The trouble starts with the exclusions in the ISO form. The sample ISO CG 00 01 04 13 hosted by Sonoma County includes these:

• Insureds in media and internet type businesses (exclusion j). It removes personal and advertising injury "committed by an insured whose business is" advertising, broadcasting, publishing or telecasting; designing or determining the content of websites for others; or acting as an internet search, access, content or service provider. The only exceptions are the false arrest, malicious prosecution and wrongful eviction offenses. Defamation, privacy and copyright in an advertisement are not carved back. The same exclusion says that placing frames, borders, links or advertising on the internet is not, by itself, the business of publishing, so an ordinary company with a blog is not swept in.
• Material published with knowledge of falsity (b) and material first published before the policy period (c).
• Infringement of copyright, patent, trademark or trade secret (i), with an exception for copyright, trade dress or slogan infringement in your own "advertisement."
• Electronic chatrooms or bulletin boards (k) that you host, own or control.

Read together, the CGL is built for a business that advertises itself, not one that sells content or advertising services. If your revenue comes from publishing, producing or placing content, you are likely the insured exclusion j describes. Carriers also have their own versions of these exclusions, so the policy in front of you controls. The wider subject is covered in personal and advertising injury coverage and CGL exclusions: what a general liability policy does not cover.

What a media liability policy covers

Media liability forms are written by specialty carriers on their own paper, so there is no ISO standard. Two structures exist. IRMI's definition describes media liability as E&O coverage for publishers, broadcasters and other media-related firms, written on a named-perils basis covering defamation, invasion of privacy, copyright infringement and plagiarism. Some carriers go further. Chubb's MediaGuard page describes "all risk" coverage rather than a list of named perils, with negligent-publication coverage for people who relied on published information. Beazley's U.S. media page advertises broad defamation and IP infringement cover, plus costs for mitigation, subpoenas and declaratory relief that are subject to sublimits.

The offenses most forms reach:

• Defamation: libel, slander, product disparagement and trade libel.
• Invasion of privacy and misappropriation of name or likeness.
• Copyright, trademark and trade dress infringement, plagiarism and misuse of ideas or formats.
• Negligent content: an error in published material that causes a reader to lose money.
• Breach of an implied contract over submitted ideas, in many forms.

Patent infringement is nearly always excluded. Trade secret misappropriation usually is too.

Occurrence or claims-made: it depends on the carrier

Unlike most professional liability, media policies do not follow one trigger. Chubb says its MediaGuard form is an occurrence form that covers activities during the policy period "regardless of when the claim is first made." Beazley writes its core media cover on an occurrence basis, with optional professional services and technology E&O extensions on a claims-made basis. AXA XL describes its primary and excess media liability as claims-made, with occurrence-basis excess over existing media coverage.

That difference changes what you do at renewal. On a claims-made policy, you need a retroactive date that goes back to your first publication and an extended reporting period if you ever cancel. On an occurrence policy, an old campaign is insured by the policy in force when it ran. See occurrence vs claims-made policies. Whichever you have, ask how the form treats a work that stays online: the answer can decide which year's policy responds to a claim about a three-year-old post.

Who buys it and who requires it

• Publishers, broadcasters and podcasters face defamation and privacy claims every week they publish.
• Advertising, PR and marketing agencies (see Marketing agency insurance) place work for clients and often agree in contracts to indemnify them for infringement.
• Film, video and music producers (Film production insurance) usually need a producer's E&O policy because distributors and financiers make it a condition of release. Expect the insurer to ask for title and copyright reports, releases and clearance procedures.
• Photographers, influencers and content creators (Photographer and videographer insurance) can be sued by the subject, by a person whose music was used, or by another photographer.
• Non-media organizations such as charities and associations that publish newsletters, reports or video.

An agency that writes code or builds platforms also has a technology exposure; see Technology E&O insurance for software, SaaS and IT firms for where that cover ends and media cover begins.

A hypothetical comparison

Say a 25-person marketing agency in Illinois uses 12 stock-style photographs it pulled from the web in a client's social campaign. The photographer, who registered the images before the campaign ran, sues for infringement.

Under the statute, a court can award statutory damages of $750 to $30,000 per work infringed, raised to as much as $150,000 per work if the infringement is willful, or lowered to $200 per work if the infringer proves it did not know and had no reason to know (17 U.S.C. § 504(c)). Twelve works means a range of $9,000 to $360,000 on the ordinary scale and up to $1.8 million at the willful maximum, before defense costs and the plaintiff's attorney fees. The numbers are an illustration of how the statute multiplies, not a prediction.

Which policy is asked to respond? The agency's CGL probably points to exclusion j, because the agency's business is advertising. Its professional liability policy might respond, or might exclude IP claims. A media liability policy is the one designed for this loss. It would be subject to the retention, and the agency would want to know whether defense costs erode the limit (defense costs inside vs outside policy limits: why it matters) and whether the carrier will cover a client's tender under the agency's contract.

Where media claims go wrong

1. Contract indemnities. Agency and production agreements often make you indemnify the client for third-party IP claims. Policies cover contractual liability only to the extent you would be liable without the contract, or where the form has a specific endorsement.
2. Knowledge and intent. Most forms exclude knowing or intentional wrongs. Some media policies are more generous than the CGL on "actual malice" claims, but this varies, so ask.
3. Prior publication. A claim about content that appeared before the retroactive date, or before the first inception date on an occurrence form, may be uncovered.
4. Licensing gaps. A license for web use does not cover television, a stock-image license has limits on print runs, and music sync rights differ from performance rights. Insurers ask to see your clearance procedures.
5. User-generated content. Federal law protects interactive services from being treated as the publisher of content others create (47 U.S.C. § 230(c)(1)), but the statute says it does not limit or expand intellectual property law. Platforms still buy coverage for IP claims and for claims about content they produce themselves. Many states also have anti-SLAPP statutes that let a defendant seek early dismissal of a meritless defamation suit; they differ by state, so ask counsel.

What to ask before you buy

1. Is the form occurrence or claims-made, and what is the retroactive date?
2. Are perils named or "all risk"?
3. Is there a duty to defend, or do you reimburse? Who controls settlement, and is there a hammer clause?
4. Do defense costs sit inside the limit?
5. Does the policy cover your content on every medium and platform, including websites you launch mid-term?
6. How are punitive damages, where insurable, handled?
7. Is generative AI content addressed? See AI liability insurance: how insurers are treating artificial intelligence risk.
8. Will it satisfy the limits your distribution agreements or client contracts require?

Brokers who place media risks typically need your content types, prior claims, clearance and review procedures, release forms and revenue from each content line.

Key takeaways

• The standard CGL's exclusion for insureds in media and internet type businesses removes defamation, privacy and advertising-copyright coverage for publishers, broadcasters and agencies.
• Media liability forms are carrier-specific: some name perils, some are "all risk," and some are occurrence-based while others are claims-made.
• Copyright statutory damages are assessed per work, so a handful of images can generate a six- or seven-figure claim.
• Contract indemnities and licensing gaps are where many media claims turn uncovered; read both before signing a production or agency agreement.
• Producer's E&O is often a condition of distribution and financing, and insurers expect clearance procedures to exist and be followed.