M/PI Source Online

I want my JuicyCampus.com

By Scott Swift

 

Imagine a website that invites your coworkers to participate in an online poll ranking your office’s “most promiscuous”? If such a site existed, odds are, your company would block access to that website. Universities are struggling with a similar issue on their campuses. Last week, Tennessee State University (TSU) became the first public university to ban JuicyCampus.com, a website that enables its users to post anonymous messages about each other. On its opening page, JuicyCampus.com boasts: “This is the place to spill the juice about all the crazy stuff going on at your campus. It's totally anonymous - no registration, login, or email verification required.” The site then invites its users to begin a discussion strand about categories or individuals. For instance, recent strands include -  “Pic of the biggest whore on campus;” “Hardest class at BSU;” and, “Richest Kid at Duke?”

Happy Halloween – I mean, Happy Anniversary, Harry Potter!!

By Katie Lula, Esq.

Today is Halloween, when coworkers can come to the office dressed as Supermans and Tinker Bells without getting fired, and kids can wander the neighborhood door-to-door, getting SweeTarts and Snickers just for looking like miniature Jack Sparrows and Snow Whites.  This amusing crossover from fantasy to reality ironically resembles the issues presented in Warner Bros. Entertainment Inc. v. RDR Books, 2008 WL 4126736 (S.D.N.Y.).  More popularly known as the J.K. Rowling / Steven Vander Ark case, today is the one-year anniversary of its filing.

Raising the Red Flag

By Jason Bucher

These days it seems you can’t pick up a newspaper without reading an article regarding a data breach or data loss event. The people of the United States have demanded better protection for their personal data, and the Federal Trade Commission has responded with the new Red Flag Rules which go in effect on November 1, 2008. These are a flexible set of guidelines that will aid in helping businesses across the country to identify ‘Red Flag’ issues to help prevent identity theft before it happens. The approach is more to educate and prepare businesses to better protect themselves and their clients, rather than to simply punish or penalize for a data loss event, which is a revolutionary approach to a very complicated issue.

Across the country, people are asking whether or not their business must comply with the Red Flag Rules. The answer is that any business that performs as a creditor and extends credit or payment plans to individuals as a regular part of their business operations will fall under these new guidelines. This could include hospitals who have payment plans for their patients, grain and fertilizer dealers, auto mechanics, Veterinarian offices, the list goes on, any entity who in the practice of their business extend payment plans to individuals will need to comply with these rules.

HIPAA Violation Levied First Fine

By Barb Wood

You might have noticed that the Department of Health and Human Services (HHS) just levied its first fine for violation of the Health Insurance Portability and Accountability Act (HIPAA). The HHS imposed a fine and corrective action plan against Providence Health and Services.

See http://hhs.gov/ocr/privacy/enforcement/resolution.html

This development is noteworthy to our clients (especially those in the health care industry) and to all of us in the professional liability community. Established in 1996, HIPAA set standards for protecting patient information, including any part of a patient’s medical record or payment history. These rules included civil and criminal penalties for violations, applying to all sorts of health-care related industries including health plans, billing services and health care providers.

As HHS levies fines and continues to conduct audits to identify violators, all healthcare providers, and their insurance agents and underwriters, should closely review their HIPAA procedures to be certain their privacy and security measures are in order. They also need to review their insurance portfolio to determine whether HIPAA or other privacy-related claims are covered, and if not, whether coverage should be obtained. Many specialty insurers, including Media/Pro, now offer privacy-related coverages specifically addressing the health care industry. With increased scrutiny, comes increased risk of violations and penalties.

Barb Wood is an Underwriter at Media/Professional Insurance

Mouthing Off in the 21st Century

By Bob Lystad and Katie Lula

In the good old days, we could stroll across our backyard, lean on the fence, wave to our neighbor, and have a simple conversation.

“Geez, did you read the newspaper today?”

“Why, yes, I did! Can’t believe it. Who would have thought? Shocking, just shocking. Joe Schmoe is such a sleaze.”

Our penchant for gossip across fences, in grocery store aisles, and around the water cooler will never go out of style. But our tradition of mouthing off has taken a new form in the 21st century: blogging. And with its transformation from comments and gossip in the neighborhood to dialogues and ramblings capable of being viewed the world over, blogging has gradually become a subject for libel and invasion of privacy lawsuits.

Who's the Fairest of them All?

By Russell Hickey

In form, they were simply denials of motions for a preliminary injunction. In substance, they were much more.

On Monday, June 2, 2008, United States Federal District Judge Sidney Stein issued a decision denying Yoko Ono's motion to preliminarily enjoin further distribution of a new documentary entitled "EXPELLED: No Intelligence Allowed." Ono and the other co-plaintiffs sued the movie's producers alleging copyright and trademark infringement because fifteen seconds of John Lennon's famous song "Imagine" had been used without consent or compensation. The decision was based largely on the finding that the use of the music constituted "fair use."

Similarly, on August 8, 2008, New York Supreme Court Judge Richard B. Lowe III denied the motion for a preliminary injunction brought by EMI Records and Capital Records in state court over the same clip.

The significance of the decisions is apparent when considered in the context of a study conducted less than four years ago by the Center for Social Media. In 2004, Patricia Aufderheide and Peter Jaszi, both professors at American University, interviewed 45 documentary filmmakers and found a "clearance culture" that was stifling expression and limiting the public's access to important documentary films. The Center's conclusions were published in a report entitled "Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers."

City by the Bay’s IT Systems Hijacked from Within

By Jon Van Meter

An IT systems administrator for the city of San Francisco refused to reveal key passwords to a network he helped engineer resulting in a 10-day standoff with the city. The withheld passwords allowed access to a critical municipal network including e-mail accounts, inmate records and payroll data.

Eventually, the individual agreed to hand over the passwords to the mayor, but not before nearly two weeks of lost productivity and inefficiency. The former employee was arrested and charged with four felony counts of computer tampering. Fortunately, greater losses, such as identity theft or corrupted data, were not detected, but the situation is far from fully resolved.

Even the prosecution of the underlying breach has created a security concern. As part of the case against the rogue employee, the District Attorney made public close to 150 city employee passwords.

This situation underscores a problem in the information age – namely that key employees with enough knowledge of internal databases and networks can wreak havoc on an organization. It is important for businesses to have a set of IT disaster procedures in place. Also, firms should not allow any single employee to have too much authority. A system of checks and balances should be in place to make sure stand-offs like the one in San Francisco are avoided.

We’ll continue to follow this case and post updates as it develops.

Jon Van Meter is an Underwriter at Media/Professional Insurance

Free Speech or Risky Business?

By Tim Covello

The future of newspaper publishing and the many new issues attendant thereto are playing out in my local newspaper, The Hartford Courant. As newspapers move from print to internet businesses, a host of new legal and ethical issues have created new challenges for the managers and editorial boards of these newspapers. One of the most interesting issues is the degree to which newspapers should exercise editorial control over the postings that occur on the message boards hosted by newspapers. Traditionally, newspaper editorial boards exercised a fair amount of control over reader feedback in the forms of letters to the editors. They chose which letters to publish and often edited the letters for clarity or brevity. The ease with which one can post a comment on a message board has created logistical hurdles in trying to read and edit every message that now far outnumber the traditional letters to the editor. In addition, the potential anonymity of message boards eliminates self-imposed constraints that known authorship may impose. Unfortunately, many of these posts can be inflammatory or hateful. Newspapers have always grappled with balancing free speech versus hateful and offensive speech. The internet has made maintaining that balance more difficult.

Rock, Chalk, Trademark . . . Yet Another Corporate Expression Claims Example

By Leib Dodell

Everyone in the professional liability community should take note of this article from the July 10, 2008 Kansas City Star. The article describes a trademark lawsuit brought by the University of Kansas against a t-shirt company called Joe-College.com over the t-shirt company's right to use the color blue and words like "Kansas" and "hawk" on t-shirts.

This is yet another example of the need for Main Street companies to purchase Corporate Expression coverage to protect them against copyright, trademark and other similar claims arising out of their products.  As the article explains, this case is not an isolated example:

"Colleges across the country have carved a considerable market with trademarking their names, their nicknames, even their colors. Businesses that want to sell a product with any of that on it must get it approved and then pay a license fee. If their product is not licensed or approved, and a college believes that merchandise infringes on its trademark or rights, there can be a price to pay."

We have seen many other similar claims brought in recent months.  In my personal opinion, KU's position is a stretch.  It is hard to imagine that words like "Kansas" and "hawk" are proprietary.  It will be interesting to see what the jury decides.  Regardless of the outcome, it is clear that these intellectual property suits are becoming increasingly common and that the professional liability insurance community needs to provide a solution to the Main Street customer.

Leib Dodell is the Chairman of Media/Professional Insurance in Kansas City.

Newspapers of the Future

By Russell Hickey

It was surprising -- if not uplifting -- to see the news that an Associated Press survey of newspaper editors in Europe revealed an optimistic view of the future of newspapers.  Some in the U.S., such as San Francisco Chronicle columnist David Lazarus, view the Internet a threat to the future viability of newspapers.  In contrast, the AP survey found a view that the Internet was more an opportunity than a threat.

There is another split of opinion, however, that may have as much impact on the future of newspapers as any.  In one camp are those who believe the Internet should be used as the publication tool for longer, in-depth, investigative journalism.  In the other camp are those who believe the Internet should be reserved for current, breaking news -- leaving the print publications as the home of investigative reporting.

The latter opinion would be more in line with a recent recommendation by Mitchell Stephens, a professor of journalism at New York University.  In short, Stephens argued that newspapers content needs to be more opinion and analysis driven to compensate for the fact that the printing and delivery process necessarily makes the content "old news" by Internet standards.

No matter which route the industry takes, it ought to remember this axiom:  You get what you pay for.  A recent study by the University of Missouri-Columbia concluded that investing in the newsroom could result in better profit margins.  The reason?  Poor news quality chases off your consumers.

Russell Hickey is a Claims Counsel at Media/Professional Insurance in Kansas City.