1. Forms
2. BP
3. BP-05-95

Form BP 05 95: Personal And Advertising Injury For Internet Or Electronic Publishing Liability

1. What the form is

The BP 05 95 "Personal And Advertising Injury For Internet Or Electronic Publishing Liability" endorsement is designed for the Businessowners Policy (BOP). Its primary purpose is to modify the standard Personal and Advertising Injury liability coverage (and related aspects of electronic data liability) found in the base BOP form, such as the BP 00 03, to specifically address some of the unique exposures businesses face from their internet presence and electronic publishing activities. This endorsement alters how the policy responds to claims of personal and advertising injury (like libel, slander, invasion of privacy, copyright infringement, or misappropriation of advertising ideas) that arise from the insured's website, blog, social media, or other electronic publications. It often achieves this by replacing or amending the standard BOP exclusions related to electronic data, providing limited coverage for certain types of electronic data loss or damage, particularly when it results from physical injury to tangible property or leads to bodily injury. However, it's crucial to note this endorsement typically offers limited coverage and is not a substitute for a comprehensive cyber liability or media liability policy.

2. Classes of business it applies to

This endorsement is relevant for a wide range of small to medium-sized businesses that have an online presence and engage in electronic publishing or advertising. This includes, but is not limited to:

• Content Creators & Publishers: Businesses that create and publish content online, such as bloggers, online newsletters, small digital magazines, and community forums.
  • Real-world example: A local restaurant that maintains a blog with reviews, articles about food, and allows customer comments could face liability if a blog post is deemed defamatory or a user comment leads to a personal injury claim.
• E-commerce Businesses: Online retailers that host product descriptions, customer reviews, and advertising content on their websites.
  • Real-world example: An online boutique that uses images in its advertising that inadvertently infringe on a photographer's copyright could face an advertising injury claim.
• Service Businesses with an Online Presence: Consultants, local service providers, or professionals who use their websites or social media for marketing, sharing information, or client interaction.
  • Real-world example: A small marketing agency that creates online advertising campaigns for clients could be held liable for misappropriating an advertising idea from a competitor.
• Organizations with Interactive Websites: Non-profits or community groups that host forums, allow user-generated content, or publish information electronically.
  • Real-world example: A local community association whose website hosts a forum where a member posts a libelous statement about another individual.

3. Special considerations

• Limited Scope of Coverage: It's essential to understand that BP 05 95 provides a limited modification of coverage. It amends the existing Personal and Advertising Injury liability and certain electronic data exclusions within the BOP but does not offer broad protection against all cyber or media-related risks. For instance, it may not cover data breach response costs, extensive business interruption from a cyber-attack, or errors and omissions from technology services.
• Interaction with BP 00 03: This endorsement directly modifies the Businessowners Coverage Form (BP 00 03). The definitions, exclusions, and limits of the BP 00 03 will still apply unless specifically amended by the BP 05 95. There is typically a specific limit for "Loss Of Electronic Data" shown in the endorsement's schedule or the policy declarations.
• Bodily Injury Exception: Historically, versions of this endorsement have maintained an exception to the electronic data exclusion if the damages are because of "bodily injury". However, newer endorsements (like BP 18 05) sometimes remove this bodily injury exception, so the specific edition date of the BP 05 95 is important.
• Focus on "Publishing" Exposures: The endorsement is geared towards liabilities arising from the act of publishing content electronically. This means it's most relevant for claims like defamation, copyright infringement in an advertisement, or invasion of privacy stemming from the insured's online communications.
• Real-world example: If an insured business posts a customer testimonial on its website without proper consent, leading to an invasion of privacy claim, the BP 05 95 would be pertinent in determining coverage under the Personal and Advertising Injury section of their BOP.
• Real-world example (Limitation): If the same business suffers a data breach where customer financial information is stolen due to a sophisticated hacking attack (without necessarily involving their "publishing" activities directly leading to a personal/advertising injury as defined), the BP 05 95 would likely offer little to no coverage for the breach response costs or financial losses, highlighting the need for a dedicated cyber policy.

4. Key information for agents and underwriters

• Risk Assessment: Underwriters should carefully evaluate the insured's online activities. Key factors include:
  • The nature and volume of content published (blogs, articles, social media, advertisements).
  • Procedures for reviewing and approving online content before publication.
  • Policies regarding user-generated content and moderation practices.
  • Use of third-party intellectual property (images, music, text) and clearance procedures.
  • The business's understanding of and compliance with laws related to defamation, privacy, and copyright in an online context.
• Identifying Coverage Gaps: Agents should explain that while BP 05 95 provides some protection, it is not a comprehensive solution for all internet-related liabilities. Businesses with significant online operations, e-commerce activities, or those handling sensitive data should be advised to consider separate Cyber Liability and/or Media Liability insurance. This endorsement primarily bridges a specific gap within the BOP for certain personal and advertising injuries stemming from electronic publishing.
• Pricing and Limits: The premium associated with this endorsement will likely reflect the underwriter's assessment of the insured's electronic publishing exposure. The "Loss Of Electronic Data Limit" provided by the endorsement is a key underwriting consideration and should be appropriate for the potential limited exposures it intends to cover.
• Underwriting Guidelines: Underwriters may have specific guidelines based on the industry, the extent of online interaction, and the insured's risk management practices concerning their online content. For example, a business with a highly interactive website allowing unmoderated public comments might be viewed as a higher risk for claims of libel.
• Real-world example for Agents: An agent working with a startup online news aggregator should discuss the BP 05 95 to address basic personal and advertising injury exposures from their published content. However, given the high volume of third-party content and potential for copyright issues, the agent must also strongly recommend a separate Media Liability policy for more robust coverage.
• Real-world example for Underwriters: An underwriter reviewing an application for a small bakery that wants to start an online blog might find BP 05 95 suitable if the blog content is low-risk (e.g., recipes, bakery news). However, if the bakery plans to host controversial discussions or extensive third-party advertising, the underwriter might decline to add the endorsement or suggest more stringent risk management controls.