James Frey fuss raises thoughts about negligence coverage in media liability policies

Have you read the recent reports about James Frey and his best-selling book “A Million Little Pieces?” Marketed as a non-fiction memoir, it sold two million copies last year. It was second in sales only to a book in the Harry Potter series after being endorsed by Oprah Winfrey, who described it as “a gut-wrenching memoir that is raw and it’s so real.”

Apparently it’s not as real as Oprah, and many purchasers, thought.

After reports by The Smoking Gun website, known for publishing embarrassing documents about famous people and events in the news, The New York Times wrote that there was “strong evidence” that “significant portions” of the book were made up. Doubleday and Anchor Books, which published the book, initially seemed to poo-poo the reports. “We stand in support of our author…” the companies said.

But the publishers soon were backpedaling. “Memoir is a personal history whose aim is to illuminate…by definition it is highly personal. In the case of Mr. Frey, we decided the (book) was his story, told in his own way, and he represented to us that his version of events was true to his recollections,“ said a company statement. True to the author’s recall, of course, isn’t saying that it is indeed true. It also isn’t saying that the publishers conducted their own fact-checking to verify statements in the book. The publishers didn’t seem to care all that much. “This is not a matter that we deem necessary for us to investigate,” said a company spokesperson about the allegations of fabrication.

The Frey situation has sparked new discussion of whether the term “memoir” means the book is a factual autobiographical account or whether it serves notice that it’s based on one person’s memories. Even so, does a writer have license to be creative and embellish a memoir? If so, how much creativity, or falsification, does the license grant?

Those are questions for the writing and publishing industries and their customers. Our questions are for the media insurance industry and its customers:

  • Can a lawsuit be filed against a publisher for selling a book as non-fiction when it contains exaggerations and events that never took place?
  • Would media liability insurance policies cover such a claim?

Not to be cute, but the answer to the first question is that anybody can file a suit for anything as long as they can come up with the filing fee. (Even the fee may be waived in the event of poverty.)

The real question is whether the claim is viable and what the damages would be. Perhaps a few individuals might have situations that would justify them making a claim for damages beyond a refund of the purchase price. But the most common item of damage, and one that might support a class action, would seem to be the cost of a refund.

We won’t spend time discussing facts that might support a contract claim or a claim for misrepresentation, sale of goods under false pretenses, fraud or false advertising. For if a claim is brought, it must be defended. If a media policy is in place, the claim probably would be tendered to that carrier. What then?

Traditional Media Liability

A limited number of companies offer media liability coverage. Historically media policies covered specified perils that one could group into four categories: defamation; invasion of privacy; intellectual property (not including patent or trade secrets); and a miscellaneous grouping of torts such as eavesdropping, trespass and false arrest.

Those coverages were provided for torts committed in researching, creating and disseminating information (here book publishing and distribution) and in related advertising.

If we assume for the moment that a book has been represented as true or non-fiction, there still is no coverage for the kind of claim we’re talking about. A claim of misrepresentation in the advertising or sales process does not fall within the four categories of coverage historically provided in media policies.

Negligent Errors or Omissions

But media liability coverage has evolved beyond that point, at least in parts of the media insurance industry. The base form of some policies will cover negligent errors or omissions by the insured. Some of those policies require the error or omission to have taken place in content, and some even specify the medium, such as a specific newspaper, broadcasting station or book; other forms don’t have such specific requirements.

Interestingly, however, some forms, have not adopted that kind of change. When buying a policy like that, errors and omissions coverage must be specifically sought by endorsement, if it’s available at all. This kind of limited form tends to be used by companies that offer but don’t really specialize in media coverage or are staffed by personnel without extensive knowledge of and experience in the area. This kind of sub-par form can even be used by a company that does specialize and has plenty of experience but still relies on older policy forms.

Availability of coverage for negligence, which extends a policy beyond the four traditional categories, is a significant distinction between policy forms now available in the media insurance marketplace, but it is a difference that can easily be overlooked.

This is not to say that a claim of the type discussed above will necessarily be covered, even if the policy does cover negligence. The specific allegations being made have a large impact on any coverage analysis.

Other Policy Terms

Policies often preclude coverage for breach of contract. (Historically, there has been an exception, but it’s not applicable to this discussion.) Traditional and even many current policies also exclude false advertising claims, such as misleading or deceptive statements in advertising the insured’s products or services. They may also contain an exclusion for deceptive business practices.

Other issues that could arise, depending on specific policy terms: did the publisher know of the false information, and does the policy exclude refunds or disgorgement of money to which the insured is not entitled?

Conclusions

While a claim of the sort discussed may or may not be covered, one thing seems clear: there is no possibility of coverage if the policy doesn’t contain at least some level of errors and omissions coverage on top of the four categories of specified perils.

Producers need to consider such policy distinctions. And since the coverage is available in the marketplace, producers may wish to either offer it to the client or procure an informed decision from the client declining to purchase such coverage.