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1st District Illinois Appellate Court Finds Coverage for BIPA Suit under Media Liability Provision

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On March 31, 2023, the First District of Illinois Appellate Court found that Lloyd’s owed a duty to defend Remprex under the media liability provision in its Beazley Breach Response policy.

Remprex was implicated in two lawsuits regarding the collection of biometric information. In the first lawsuit, Remprex itself was not a named defendant but was subpoenaed for documents, and some of its officers were deposed. In the second lawsuit, Remprex was named, although it was later dismissed. Remprex sought coverage for costs expended in defense of both cases; however, the Court found that since Remprex was not a named defendant in the first lawsuit, coverage was not triggered.

In the second lawsuit, the complaint against Remprex alleged that it collected individuals’ fingerprints and transmitted them to another entity without permission in violation of Illinois’ BIPA law. As a result, Remprex argued that the lawsuit involved allegations that Remprex disseminated media material to the public – arguing that the word “public” should be understood to include the sharing of information between itself and another entity. Transmission of media material to the public – which, by definition, included fingerprints – would have been covered under the media liability provision in Remprex’s Beazley Breach Response policy.

The Court found Remprex’s argument that the term public could include dissemination to a counterparty of the agreement unavailing and held that the term public should be understood how it meant in everyday speech. As a result, the Court held that the complaint against Remprex did not include allegations that it disseminated biometric information to the public. However, the media liability provision at issue in the case also defined media liability as violating an individual’s right to privacy while creating media material. Because the collection of fingerprints fell under the media material definition, the Court found that the media liability provision provided coverage for the suit.

As the collection of fingerprints, face scans, and other biometric information becomes more commonplace today, this case reminds collectors of biometric data to review their insurance policies to confirm they are covered in case of a lawsuit.

The case is Remprex LLC v. Certain Underwriters at Lloyd’s London, 2023 IL App (1st) 211097.

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