Insurer offers liability coverage for Internet bloggers

Arch Insurance Group Inc. of New York City announced Tuesday it is offering claims-made liability coverage for bloggers.

“BloggerShield provides affordable, customized claims-made coverage for libel, slander, defamation, copyright infringement and privacy violation in the course of the insured’s blogging activities,” the firm stated in a press release.

The coverage is “not yet available in Canada,” Arch Insurance Canada Ltd.’s business development manager for eastern Canada, Jean Monette, wrote in an e-mail to Canadian Underwriter.

In the U.S., Arch will offer options on its blogger coverage, such as a zero-deductible option, multiple limits option and a supplemental claim expense limit.

“Bloggers can now be protected from potential lawsuits that could otherwise put both their blog content and personal assets at risk,” Arch stated.

Arch Insurance is a subsidiary of Hamilton, Bermuda-based Arch Capital Group Ltd. The carrier is offering the bloggers’ insurance in partnership with CalSurance Associates, a division of professional liability insurance company Brown & Brown Program Insurance Services Inc., based near Irvine, Calif.

“Bloggers are more vulnerable than ever to the threat of legal action, as evidenced by the increasing number of blog-related lawsuits,” CalSurance chief technology officer Tom Hext stated in a press release. “Without insurance protection, bloggers remain susceptible to the financial cost of defending lawsuits, potentially compromising their blog and their personal assets.”

Defamation laws in Canada are different from those in the U.S.

Published reports indicate that Toronto Life magazine exhausted the limits of its liability coverage when it was sued about 25 years ago for $102 million for libel by the Reichmann family over an article. The Reichmanns’ suit was settled out of court and Toronto Life published a retraction and apology in 1991.

According to a document published by the Canadian Judicial Council, libel “is essentially a law against reporting things you can’t substantiate.”

Quoting from media lawyer Michael Crawford, CJC notes the “classical definition” of libel is “any statement which tends to discredit or lower an individual ‘in the estimation of right-thinking members of society generally.'”

The CJC document, titled The Canadian Justice System and the Media, notes that libel applies to “statements that may cause others to shun or avoid a person, or tend to expose them to ‘hatred, ridicule or contempt.'”

According to an article published by law firm Carters Professional Corp., every province and territory in Canada has “similar legislation to protect the victims of either spoken or written communication that can disparage that person’s reputation.”

CJC notes that in Canada, generally, individuals or organizations sued for libel can defend themselves by proving, on a balance of probabilities, that the disputed statements are true.

Other defences include qualified privilege. In Ontario that defence applies to, among other things, fair and accurate reports on proceedings of legislative bodies, commissions of inquiry or public authorities.

CJC notes that qualified privilege also applies to the “rulings of courts, tribunals and official inquiries,” in addition to “documents produced or discussed in open court or before a tribunal or inquiry.”

The Supreme Court of Canada has called on legislatures to create an additional “defence of responsible communication on matters of public interest.”

The highest court in the land made that finding in a December 2009 decision on a lawsuit filed by Peter Grant, who had sued the Toronto Star and reporter Bill Schiller, among others, for a 2001 article on a proposed private golf course development on Grant’s lakefront estate.

A jury had ruled in favour of Grant, awarding general, aggravated and punitive damages totalling $1.475 million. An appeal court overturned that ruling, holding that the trial judge “should have found as a matter of law that the subject of the article was in the public interest and gone on to assess responsibility on that basis.”

The provincial appeal court ordered a new trial, a ruling that Grant appealed to the Supreme Court of Canada. The highest court heard and dismissed Grant’s appeal.

It ruled that defamation laws in other democracies “favours replacing the current Canadian law with a rule that gives greater scope to freedom of expression while offering adequate protection of reputation.”

“A defence that would allow publishers to escape liability if they can establish that they acted responsibly in attempting to verify the information on a matter of public interest represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Canadian society,” the Supreme Court of Canada ruled. “The law of defamation should therefore be modified to recognize a defence of responsible communication on matters of public interest.”

The court added that media outlets and bloggers “must act carefully, having regard to the injury to reputation that a false statement can cause.”