Content can be a minefield for agencies. Anything you publish – whether it’s in the form of a game, video, the written word or audio – leaves you vulnerable to potential litigation. How you manage this exposure depends on the nature of the content along with those associated with it.

To help you better understand the process, we’ve explored what it means to publish contentious content here. We also explain where you stand when it comes to legal action taken against you. Read on to find out more.

What does insurance protect you from?

All agencies should be covered under their Professional Indemnity (Errors and Omissions) policy. Specifically, this protects you from actions such as:

• Libel or slander – the unjust harming of an individual or groups’ reputation within the content.
• Breach of privacy or confidentiality – the unauthorised disclosure of personal information.
• Intellectual property infringement – exploiting or copying a product or piece of content without authorisation.
• False, misleading or inaccurate statements – the dissemination of inaccurate information that causes harm.

Naturally, the larger the platform that the content is shared to, the more likely it is for agencies to be met with legal action – no matter how spurious these claims may be (Why Spurious Claims Should Be Taken Seriously). And while your insurance can protect against this, ‘heavier’ content may not be covered.

What’s considered ‘heavier’ content?

The ‘heaviness’ of a piece of content can often vary from person to person. That’s why an insurer will evaluate whether what you’re publishing has any history of upsetting a particular group, or comments on an ongoing controversy. For example, if you’re poking fun at contemporary politics, there may be factional fallout.

Provided there isn’t, your insurer may then consider whether or not the content is subject to a civil or criminal legal process. This could tie into the geographical locations you intend to publish your material in. For example, certain content may inadvertently breach the USA’s advertising standards, leaving you exposed to legal action internationally.

Your insurer will also review whether a celebrity’s involvement or endorsement could increase the risk exposure. Their association is likely to raise awareness of the published content – a double-edged sword if audiences you hadn’t intended to reach discover your material and are motivated to take action.

How should you handle this content?

Firstly, you should have pre-release risk management protocols in place to ensure nothing is published that exposes you unnecessarily. This extends to the music you use on video or other media too, as licence fees are not as costly as subsequent actions for financial redress. 

Similarly, if you’re featuring external work within your content, you’ll need approval from the original creator. And if you want to avoid breaching a confidentiality contract, it goes without saying that the entire project should be signed off by the end client.

Then it comes to third parties. As well as ensuring subcontractors hold their own Professional Indemnity insurance (to avoid any subpar work becoming your legal responsibility), if possible, ask your insurer to review these contracts. Typically, they’re looking for excluded consequential loss as well as a cap on liability. 

Keep an eye out for client requests too, such as:

• Do you require a third party to be named as an additional insured?
• Is the contract under USA or Canada jurisdiction?
• Are there certain limits or clauses required?

For extra support, consult our contract checking guide – created to help our clients assess insurance clauses.

What information do your insurers need?

Most insurers consider the above to be the bare minimum. It’s likely that contentious material will still undergo a review by an underwriter to ensure it’s appropriately covered from legal action. At this stage, you can assist by providing:

• A synopsis of the content
• Details of the intended audience
• Copies of any contractual agreements
• A list of territories that the content will be published in
• Information on the publishing format and channels
• Knowledge of any person of interest featured who may draw attention
• Material that has already been published or is in the public domain

As well as these issues concerning levels of controversy, you also need to arrange legal checks. Due to the niche nature of the material in question, the firm you solicit should be suitably qualified in handling content, as insurers expect to see confirmation of:

• Title report – to check the title of the content hasn’t been used elsewhere, preventing an IP exposure.
• Clearance report – a full review of the content by experienced legal counsel, considering specific exposures relating to intellectual property, defamation and privacy issues. It should also explore the severity of any potential damage upon release.
• Completed proposal form – insurers may insist on this for their records. Your legal representative can provide the form.

When publishing high-risk content, the important thing to remember is to always keep your broker or insurer informed. In doing so, they can help ensure you’re properly protected and check you’ve taken all the necessary steps. Want to find out more? Chat to our team today.

Photo by Keagan Henman on Unsplash