If your school uses social networking to communicate, you may be exposed to risks that are not covered by your current insurance program. While much of the case law concerning vicarious liability of personal injuries perpetrated on the internet is still being written, even a school that is ultimately acquitted of damages could suffer significant defense costs...

If your school uses social networking to communicate, you may be exposed to risks that are not covered by your current insurance program. While much of the case law concerning vicarious liability of personal injuries perpetrated on the internet is still being written, even a school that is ultimately acquitted of damages could suffer significant defense costs.

A Scenario

Emily, a senior at State College, has a work study job in your business office. One of her responsibilities is to update the school’s social networking feeds with news on upcoming campus events. These updates are done under the supervision of the school’s Vice President of Marketing. Emily was given the school’s username and password for the various social networking sites so that she can quickly make posts at the Vice President’s request. One afternoon, shortly after breaking up with her boyfriend, Don, Emily uses State College’s Facebook page to make defamatory and untrue remarks about her now ex-boyfriend.

Despite Emily instantly regretting her decision, the social networking post is disseminated virtually instantly to all of State’s followers via mobile devices, and several students alert Don to the posting. Don sues the college, the Vice President of Marketing, and Emily for libel, defamation of character, and emotional distress.

Potential Coverage Issues

General Liability

The standard ISO personal and advertising section excludes “personal and advertising injury arising out of an electronic chatroom or bulletin board the insured hosts, owns, or over which the insured exercises control.” Simply put, a standard unendorsed general liability policy would not cover the claim example above. Further, claims alleging emotional distress may fall outside the definition of bodily injury if the policy is not properly endorsed.

Educators Legal Liability

Failure of management to properly govern the school’s social networking feeds leads to a claim against your educator’s legal liability (ELL) policy. Since there is no “standard” coverage form, a careful review of your policy must be made before determining if coverage for this type of claim would apply.

Some ELL policies contain a personal and advertising injury exclusion which can prohibit coverage. Additionally, most ELL policies contain a bodily injury exclusion that preclude, or at least limit, coverage for damages related to emotional distress and mental anguish.

Solutions to the Problem

Take Posting Seriously

Many organizations use social networks as an inexpensive and effective way to promote and market various services. Before allowing just anyone social networking posting rights, think about the level of employee you entrust with the final approval and dissemination of traditional marketing material. A social network posting should be treated in a similar way, and it arguably requires greater caution given the immediacy of distribution. Content and final distribution should be carefully monitored, and the ability to make postings should be limited to those who have appropriate experience.

Consider Restricting Your Privacy Settings

While the above scenario deals specifically with information disseminated by the school, there is also the risk that someone who responds to one of the posts can commit a libelous or otherwise harmful act. While courts continue to debate if the owner of an account is ultimately responsible for content others disseminate, ensuring that your social network’s privacy settings are sufficient is an excellent best practice. If available, your privacy settings should also restrict third party commenting to approved persons.

Additionally, you should consider establishing guidelines for responding to posts. Having a predetermined procedure for responding to negative posts aimed at the school (for example a student complaining about contracting food poisoning in the dining hall) can keep the issue from becoming an argument in front of the entire student body online.

Risk Financing Techniques

From a risk financing standpoint, there are several things you can do to help fill the potential exposure gap left by traditional insurance policies.

Some general liability carriers are willing to amend the personal and advertising injury section to include personal injury acts that are committed electronically, effectively removing the aforementioned exclusion. In addition, the definition of bodily injury can often be broadened to cover claims alleging emotional distress and mental anguish.

For educator’s legal liability, eliminating any personal injury exclusion will assist in providing coverage for suits alleging your Board or Executive Committee failed to properly govern internet postings. Alternatively, amending the preamble for the personal injury and bodily exclusions from “based upon, arising out of or otherwise attributable to” to “for” will limit the scope of the exclusion’s application for potential claims.

Finally, if the above cannot be accomplished with your insurer, a privacy liability policy can be purchased to cover personal injury exposures for “internet” based activities. Such policies are becoming more available and premiums are expected to moderate as the market for this coverage matures.

Conclusion

Schools cannot afford to pass up the vast opportunities social networking can provide. However, by making social networking posting procedures part of your broader risk management practices, the potential problems can be greatly reduced with just a few changes to your procedures or insurance policies.