In July 2025, a Minnesota district court held that an insurer held a duty to its insured to defend claims for damages by employees for posting their images on Facebook, Instagram and Twitter because these platforms were not subject to an exclusion in the insurance policy for injury arising out of posting on any “electronic chatroom or bulletin board …”.

The insured was a ‘gentleman’s club’ which used photos of models in their advertisements for the club on the club’s Facebook, Instagram and Twitter accounts without the models’ consent or authorisation. The insurer under the business owners policy denied a duty to defend on the basis that the exclusion applied. None of the terms at issue were defined in the policy and the court relied on the plain meaning of those terms from textbooks and law dictionaries. The court held that a “chatroom” is an online platform that enables users to communicate with each other in real time and is typically hosted on a server with an internet connection, enabling members from around the world to hold conversations about various topics. An “electronic bulletin board” was said to be an online communication system where one can share, request or discuss information on just about any subject. In contracts, as commonly understood, Facebook, Instagram, and Twitter are “social media platforms”. Social media platforms include any cell phone or internet-based tools and applications that are used to share and distribute information. The insured did not host, own, nor exercise control over the social media platforms which it used to promote its business, nor did it use those platforms with the intention to generate any discussion among viewers. The policy exclusion did not apply.

This is an obvious outcome where there was reliance on an inappropriate exclusion. The same result would follow in South Africa.

Illinois Casualty Company v Kladek, Inc. No 22-3214, 2025 WL 2071043 (D.Minn.July 23, 2025)