Not By “Any Manner” Of Means: Securing Cyber-Crime Coverage After Zurich v. Sony

Much has been written about the New York Supreme Court’s landmark ruling in Zurich American Insurance Co. v. Sony Corp., Index. No. 651982/2011 (N.Y. Supr. Ct. Feb. 21, 2014), in which a New York trial court denied coverage to Sony Corporation for liabilities stemming from a 2011 cyber-attack on its PlayStation Network. The court held that while a wide-scale data breach represents a “publication” of private information, the PlayStation Network breach did not fall within the ambit of Sony’s commercial general liability (“CGL”) policy because the policy covered only publications by the insured itself—not by third-party hackers. The court rejected Sony’s argument that the phrase “in any manner,” which qualified the word “publication” in Sony’s policy, sufficed to broaden coverage to encompass third-party acts. Instead, the court determined that the “in any manner” language referred merely to the medium by which information was published (e.g., print, internet, etc.), not the party that did the publishing.

Most of the commentary surrounding Sony has focused on the court’s interpretation of the phrase “in any manner.” But that aspect of the court’s ruling was relatively unremarkable: other courts have similarly limited the phrase, most notably the Eleventh Circuit Court of Appeals in Creative Hospitality Ventures, Inc. v. United States Liability Insurance Co., 444 Fed. App’x 370 (11th Cir. 2011) (holding that the issuance of a receipt to a customer containing more than the last five digits of the customer’s credit card number does not represent a publication). Lost in the Sony debate is the fact that Sony may be able to prevail on appeal even if the appellate court refuses to adopt a broad reading of the “in any manner” language. Indeed, Sony can make a compelling case that the term “publication,” when read in context with the policy as a whole, is intended to encompass both first-party and third-party acts.

In focusing narrowly on the language of the advertising injury coverage grant, the Sony court overlooked a “cardinal principal” of insurance law: namely, that an insurance policy “should be read to give effect to all its provisions and to render them consistent with each other.” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 (1995). Had the court taken a more holistic approach, it might have noticed that language in other parts of the policy evidenced the insurers’ intent to cover third-party publications. If Sony’s policy resembled the standard Insurance Services Office, Inc. (“ISO”) CGL policy, its exclusions section was surely riddled with clauses restricting coverage for certain types of injury “caused by or at the direction of the insured.” Only six of the exclusions in the ISO policy are not so qualified, including the absolute pollution exclusion and the exclusion for publications that occur prior to the policy period. It makes sense that insurers would wish to broadly exclude such categories of injury, just as it makes sense that exclusions for intentionally injurious acts would be written narrowly to apply only to the insured’s own actions. These carefully worded exclusions—when read together and in context with the policy as a whole—evidence a conscious decision by Sony’s insurers to exclude some injuries only if caused by the insured, while excluding other types of injury regardless of who, if anyone, is at fault. This, in turn, suggests that the insurers contemplated coverage for third-party acts unless such acts are expressly excluded.

Nowhere is this better illustrated that in the ISO policy’s exclusion for intellectual property infringement. This exclusion purports to broadly bar coverage for injury “arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.” However, this broad exclusion is qualified by the caveat that it “does not apply to infringement, in your ‘advertisement’, [sic] of copyright, trade dress or slogan.” Thus, the exclusion bars coverage in the first instance for all intellectual property infringements irrespective of the identity of the perpetrator, then adds back coverage for certain acts of the insured. This evidences the insurer’s understanding that unless otherwise excluded, the policy affords coverage for advertising injury regardless of who caused it.

At minimum, the fact that the ISO policy exclusions vary with respect to whether they exclude all acts or only first-party acts should be sufficient to raise an ambiguity, thus triggering “the common-law rule of contract interpretation that a court should construe ambiguous language against the interest of the party that drafted it.” Mastrobuono, 514 U.S. at 62. Even if the policy does not unambiguously afford coverage for third-party publications, it is at the very least “susceptible to more than one reasonable interpretation.” Discovision Assocs. v. Fuji Photo Film Co., Ltd., 71 A.D.3d 448, 489 (N.Y. App. Div. 2010) (internal quotation marks and citation omitted). Pointing to ambiguity in the policy as a whole would provide policyholders such as Sony with a more plausible and straightforward avenue to securing coverage for third-party publications than does narrowly parsing the phrase “in any manner.”

The question of whether third-party publications are covered under the typical CGL policy is of crucial importance to policyholders seeking insurance recovery for cyber-crime injuries. Importantly, victory on this point by Sony or another hacking victim would transform Sony into a policyholder-friendly decision, because the Sony court answered the other difficult question presented in the case—whether a data breach represents a “publication”—in favor of coverage. If the appellate court is willing to look past the narrow language of the advertising injury coverage grant and focus on Sony’s policy as a whole, Sony will have a good chance of prevailing on appeal and, in doing so, will set a strong precedent in favor of cyber-crime coverage for hacking victims.


Gilbert LLP is a Washington-based law firm specializing in litigation and strategic risk management, insurance recovery and complex dispute resolution.