The Age of Disparagement: How Social Media Has Refueled the Smear

• Publication year: 2021

Charlie Kingdollar^*

Abstract: In a time when there are hundreds of millions of blog and social media posts and comments each month, and billions of text messages sent daily, we are all just a press of the thumb or a mouse-click away from trashing someone or being trashed ourselves. In this article the author details the enormous potential risk facing individuals, organizations, and the insurance industry, as a result of this ubiquitous and largely unchecked form of sharing our thoughts.

Welcome to life in the Social Media Age. Facebook, Twitter, LinkedIn, blogs, and vlogs (video blogs) only scratch the surface as to the number and variety of internet social media websites. Wikipedia currently lists 198 active social media websites. Of those listed, only 13 rather obscure ones, existed over 20 years ago—the oldest began operations in 1996. For the purposes of this article, I have included texting under the umbrella of social media. Users of these websites come from all over the world, but I will only consider the exposures these websites bring to U.S. users and their personal lines insurers.

When I first wrote about the increasing personal lines exposures of online defamation and disparagement (about 15 years ago), one measure discussed was how many U.S. households had computers. This figure has largely become irrelevant with popularity of mobile technology like smartphones and tablets.

While I doubt anyone at this point really needs to be convinced of the popularity of social media, here are some statistics to highlight its prevalence.

In 2019, more than 269 million Americans used a smartphone¹—including 95 percent of U.S. teens.² That same year, more than 181 million Americans used a tablet.³ According to Statista, ". . . The United States has one of the highest social network penetration rates in the world. In 2019, over 246 million Americans were using social networks to post pictures, 'like' and comment on content by others, or send private messages. With over 70 percent of the U.S. population holding a social media account, these platforms and services have become some of the most popular online activities of the past decades."⁴

[Page 41]

According to the Pew Research Center, some 28 percent of American adults admit to being online almost constantly. This jumps to 39 percent among adults ages 18 to 29. Among all adults, another 45 percent admit to going online several times per day, and 81 percent of American adults go online daily.⁵

For teens, the percentage of those online are even higher. By 2018, 45 percent of U.S. teens ages 13 through 17 were almost constantly online, and 71 percent use multiple social media platforms.⁶

Social Media Use

In 2020, 223 million Americans used Facebook⁷; 73 percent of U.S. adults and 51 percent of U.S. teens ages 13 to 17 currently use the platform.⁸ As of September 19, 2020, there were 48.35 million active monthly Twitter users in the United States and roughly 42 percent of these use the platform each day.⁹

There are some 31.7 million bloggers currently in the United States.¹⁰ Globally, 70 million blog posts just on WordPress each month and 77 million comments each month. That is 840 million WordPress posts annually and another 924 million comments on these posts annually.¹¹ WordPress is only the second most popular blogging platform. Tumblr hosts 440 million blogs. According to hos-tingtribunal.com, there are something north of 500 million blogs.¹²

By 2017, according to the Center for Information Technology Accommodation (CITA), 6 billion text messages were sent daily in the United States, more than 180 billion monthly, and some 2.27 trillion are sent annually.¹³

While just scratching the surface, you can see how "published" most Americans, including children, have become. By the way, according to the Merriam-Webster's dictionary, "publish" is defined as:

1. a. to make generally known, b. to make public announcement of,
2. a. to disseminate to the public, b. to produce or release for distribution, c. to issue the work of (an author).

[Page 42]

A new development regarding exposure is the fairly recently paid position of "social influencer." Social influencers are generally young and have likely developed a sizable following online. They are paid to use, review, or promote products on their vlogs. Some fear that social influencers who were paid to use and/or promote e-cigarettes and vaping products may be named as defendants in e-cigarette/vaping litigation.

Insurance Coverage

During the past 20 years, insurers providing homeowners and/or personal umbrella coverage have focused most of their efforts with regard to product change on making the coverage easier for insureds to purchase. For instance, many insurers have created shorter coverage applications, and the vast majority no longer require renewal applications for homeowners policies.

Some may assume that exposures facing these carriers have not materially changed much over the past 20 years. But today, the exposure created by defamation (libel) and disparagement via social media has increased dramatically. The sheer number of websites, individual posts to these websites, the number of potential occurrences within a single year and over multiple years can be mind boggling.

Many homeowners' policies do not provide coverage for "personal injury," which includes coverage for the offenses of defamation and disparagement; therefore, any allegations would not be covered. That said, many carriers will add coverage, usually granting full limits, for very little additional premium.

Personal umbrella policies, which sit atop homeowners' policies often provide coverage for personal injury. Personal umbrella policies will drop down over the homeowners' deductible to provide coverage for defamation and disparagement should there be defense costs or a claims payment necessary. Again, under personal umbrella most carriers either charge very little or no additional premium.

After all, historically (i.e., pre-2000), there are not many losses arising from defamation and disparagement. Back then: (1) only a very small percentage of people were "published," and (2) most times, items published were examined by an editor to prevent allegations of things like defamation and disparagement being levied against the publication. Today, most of us are published—but without the benefit...