Secrecy and Seclusion: Developments in Privacy Insurance Law

Privacy has become big news. Our society has an epidemic of identity theft, loss of personal data, blast faxing, and data mining. The wave of new privacy litigation has led to a wave of privacy insurance litigation, particularly with respect to coverage for blast faxes—unsolicited and unwanted facsimiles which bombard businesses and individuals. The main debate results from the fact that while the advertising injury section of the general liability policy provides some coverage for invasion of privacy, the new privacy causes of action do not necessarily fit the insurance policy's coverage. For example, while blast faxes invade the recipient's privacy or seclusion, insurers assert that the faxes do not involve the publication of secret material. To meet this problem, insurers are writing new tech or cyber policies that provide far more expansive coverage for privacy.