We may be in the peak month for Fires, but let me tell you about another fire risk.
This risk is a not just a fire, but has embers that may last years!
“Mass” and “Unsolicted” texting messages to contacts you do not have a confirmed authorization or approved affiliation can leave you in a hot legal mess with no one and no policy covering defense costs.
This includes all Phone calls, Facsimile Transmissions, Electronic Mails, or other forms of unsolicited communication, as well as ANY actual of alleged violation of any laws, or regulations which prohibit or otherwise regulate unsolicited communications.
Your E & O policy for your services has exclusions for TCPA – yes the Telephone Consumer Protection Act of 1991 (and amendments) is a target not only for denied E & O Claims, but for Cyber Claims, BOP Claims and General Liability Claims.
If you are considering a “mass attack“ of solicitations or marketing you need to be aware of the following:
1) If you knowingly send mass communications to individuals you do not know or have not received prior authorization from be prepared to suffer the consequences. Your E & O policy or your cyber policy may not offer defense on these types of claims. They may even be CLASS ACTION claims which again, your policy may exclude altogether including allegations.
Read your policies!
Make sure that if you are considering college interns or online marketing products for your agency, that you seek advice from a reputable marketing professional. You may have to pay a small fee now, but the the payment of legal defense fees or regulatory fines will be a lot more in the end.
Here is a sample wording on a professional liability policy:
based upon, arising out of, contributed to by, or in any way connected with Unsolicited Communications made by or on behalf of any Insured. Furthermore, the Insurer shall not be obligated to defend and investigate or pay Claim Expenses or any other costs incurred in any Claim, Disciplinary Proceeding, or Pre-Claim Event based upon, arising out of, contributed to by, or in any way connected with Unsolicited Communications made by or on behalf of any Insured.
B. Section XII. GLOSSARY is amended to add the following:
Unsolicited Communications means any form of communication, distribution, or the transmittal or publication of information or material, including, but not limited to facsimile, electronic mail, postal mail, express mail, telephone, internet or web-based advertisement, instant message, SMS message or text message that the recipient has not specifically requested.
Unsolicited Communications include, but are not limited to actual or alleged violations of:
1. The Telephone Consumer Protection Act (47 U.S.C. §227), including any amendment of, or addition to, such statute;
2. The Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 U.S.C. §7701, et seq.), including any amendment of, or addition to, such statute; or
3. Any other statute, ordinance or regulation relating to the communication, distribution or transmittal of unwanted content, information or material.
The National Law Review posted in summary:
So what do these recent cases tell us about insurance coverage for TCPA violations? If there is an express TCPA exclusion, it is likely coverage (including defense) will not be available. A TCPA violation appears to be an invasion of privacy violation and if an exclusion exists for claims of violation of privacy, coverage (including defense) will not be available. The intentional act of a TCPA violation is likely not an “accident” for purposes of insurance coverage. See the cases for Tcpa
Published on The National Law Review (http://www.natlawreview.com)
TCPA World featured two blog posts in May (May 6 and May 31) that discussed two TCPA coverage cases. In this post, we will cover some recent cases to see if there is any developing trend.
Also Read: Why E & O Insurance Will Benefit Your Agency