The following is Part II in our two-part series on the intersection between social media advertising and the lesser known portion of commercial general liability (“CGL”) policies—the elusive “Coverage B.” In Part I, we examined the prevalence of social media and social media advertising in today’s society. We also provided a brief overview of the Coverage B provisions that are likely to be implicated by social media advertising. In Part II, we discuss these Coverage B issues in greater detail.
POTENTIAL COVERAGE B ISSUES IMPLICATED BY SOCIAL MEDIA ADVERTISING
1. What Constitutes Advertising?
A threshold issue that could arise in cases involving social media advertising is whether the use of social media qualifies as “advertising” under the policy. In the typical insurance policy, “Advertising Injury or Damage” is defined as including a covered offense stemming from the insured’s “advertising” efforts. However, the term “advertising” is often left undefined.
Social media advertising raises some unique questions, particularly with respect to whether specific content constitutes “advertising.” On the one hand, banner ads (i.e., those typically found on the top or sides of a website) are akin to traditional forms of print advertising; therefore, it is difficult to imagine that such content would not qualify as “advertising” for Coverage B purposes. On the other hand, social media offers access to less formal means of advertising. For instance, a business could open a Twitter or Facebook account in order to promote itself through individual postings. Although the use of these social media platforms as a promotional tool would appear to constitute “advertising,” judges unfamiliar with social media platforms, or at least more familiar with traditional forms of advertising, might disagree.