Eugene Volokh has reposted a very useful analysis of whether homeowner's insurance policies cover libel lawsuits, entitled Blogger -- You Might Have Already Had Libel Insurance. Volokh concludes -- in my opinion, correctly -- that homeowner's insurance policies, and possibly some renter's insurance policies, generally cover libel lawsuits. While these policies don't cover punitive damages (almost all policies exclude intentional or willful conduct), they do cover compensatory damages and attorney's fees.
This is obviously good news for citizen journalists. But the picture is not quite so rosy. As Volokh notes:
[T]hese policies generally explicitly exclude liability related to "business pursuits." The exclusion and the definition of "business pursuits" may vary from policy to policy, so check yours (and again check both the homeowners' insurance and your umbrella policy, if you have it). Still, I'm told that most policies just say "business pursuits," and sometimes define them as referring to a "trade, occupation, or profession."
If your blog is entirely noncommercial — you neither have ads nor solicit donations for a tip jar, and you don't systematically use your blog as primarily promotion for your business — then you should be covered for libel lawsuits arising out of your blog posts, because the blogging wouldn't be a business pursuit. (Possible exception: If your primary occupation is a professor or a journalist, then even noncommercial posting on topics related to your specialty may conceivably be seen as part of your main occupational "business pursuit"; I know of no precedents one way or the other about this.)
But if you make some money out of it, even a small amount, then in many states you probably won't be covered.
For citizen journalists, the exclusion for "business pursuits" can be very problematic. Many, although not all, citizen journalism sites are searching for a way to make money. As informal blogging morphs into a money-making pursuit, your very success will open you up to both increased liability and decreased insurance coverage.
So what to do?
- First, carefully review your existing policy to see if claims related to your online activities are covered (e.g., claims for libel, invasion of privacy, copyright infringment). If your policy doesn't cover you, consider switching to another carrier that does.
- Second, research whether your state's law excludes coverage for your activities. [The CMLP's forthcoming legal guide will have state-specific sections addressing this subject.]
- Third, if your state excludes coverage for business pursuits and you make money from your site, carefully weigh whether the income you receive is worth the loss in coverage.
- Fourth, consider getting media liability insurance; while these policies are expensive -- perhaps prohibitively so for a newly formed business -- they can also be quite comprehensive. For a list of carriers, see the Online Journalism Review's Major Insurers With Media Liability Insurance Products.
On a related note, we are collecting examples of insurance policies from different carriers in an effort to create a comparison of terms and coverage. If you would like to participate (all personal information should be removed), please let us know via our contact form.