Media and Advertising Liability Outlook Demands Tougher Vigilance
Social media and online marketing have raised new defamation, copyright and licensing concerns. As the number of lawsuits over these issues continues to rise, advertisers and content providers can take proactive steps to protect themselves.
One growing trend is that copyright owners are increasingly filing lawsuits against advertisers and online publishers who use music in social media posts, according to a recent panel of media and cyber insurance lawyers. These cases often arise because the publishers have a license to play the songs at events, but the license does not extend to social media advertising. The license may be a public performance license but not a so-called “synch” or synchronization license needed for audiovisual works, whether on television or the internet.
Sophisticated boutique copyright law firms that specialize in these suits bring claims against not only recent online posts but much older ones, too, according to insurance claims counsel who recently spoke at an American Bar Association Communications Law Conference. These seasoned claims handlers recommend that social media advertisers and other content providers review old posts on a regular basis to scrub them of potentially infringing material.
A similar trend involves commercial photographers filing copyright infringement suits after using software to find their copyrighted photos in online publications and ads. Often, inexperienced freelancers and marketing professionals do not realize that photographs found on the web may not be used without a license. Being publicly available does not mean the photos are in the public domain for copyright purposes.
Another emerging legal development content providers should be aware of is the growing cost of defending against defamation lawsuits. The trend toward courts allowing more discovery to take place before dismissing a libel case is causing increased costs. Plaintiffs’ defamation lawyers also are bringing more claims in light of a changing national climate around the actual malice defense and a general distrust of social networking platforms and the news media.
The shift toward plaintiffs in defamation cases has been exacerbated by “cancel culture” pressure being brought to bear through social media. Speakers who are “canceled” for making offensive statements can claim implied defamation. And updates of old stories can be used to try to resurrect time-barred publications that had passed the statute-of-limitations hurdle.
While these evolving dynamics make media and advertising liability insurance more important than ever, especially for small companies and individuals, media insurance premiums are also going up. At the same time, there has a been a contraction in the advertising insurance market, and endorsements for cyber liability. NFTs, the metaverse and other exotic cyber devices have intensified the uncertainties around potential online claims.
In this challenging legal environment, it is more important than ever for editors and legal counsel to vet social media communications in advance, and it’s cost-effective over the long term.
Please contact Mary Ellen Roy or any member of Phelps’ Media Law team if you have questions or need advice or guidance.
