“[The] battle between the right to privacy and the monitoring and recording of private communication is at the center of the proliferation of class action lawsuits,” write Jonathan L. Schwartz and Colin B. Willmott, attorneys in Goldberg Segalla’s Global Insurance Services Practice Group.
“These unauthorized recording class action lawsuits are, or should be, on the proverbial radar of insurance carriers that write commercial general liability (‘‘CGL’’) policies. Policyholders are turning in increasing numbers to their policies’ ‘personal and advertising injury’ coverage when confronted with these claims. In particular, policyholders contend that the offense of ‘oral or written publication, in any manner, of material that violates a person’s right of privacy’ (the ‘Privacy Offense’) provides coverage. The jurisprudence regarding whether unauthorized recording claims satisfy the Privacy Offense is nuanced, complex, and divisive.”
Jonathan and Colin suggest that though courts are split on some issues regarding unauthorized recordings, their interpretation of the “publication” requirement in similar situations provides some insight into how they are likely to decide in future surveillance cases.