Liability insurance for an SEA agency
In search advertising the conflicts sit in the keywords and the ad copy. Those are legal claims about trade marks and advertising, and they do not fall under business liability insurance.
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In brief
For an SEA agency, public and employers' liability insurance covers the physical side: injury to staff and visitors, damage to a rented office and damaged equipment at a client during a session on site. That is limited but genuine cover. Your real risk lies elsewhere, and that is precisely why it is sensible to know in advance where the boundary runs rather than to discover it after a cease-and-desist letter.
The first source of risk of your own is use of trade marks. Bidding on a competitor's brand name and then letting that name appear in the ad copy or the display URL regularly produces a cease-and-desist letter from the trade mark owner. Infringement of intellectual property is excluded on virtually every liability policy. Record for each campaign which brand terms were added on the client's instructions and which by you, and keep that instruction.
The second source is the ad copy itself. Price statements, discount claims, stock notices and superlatives are advertising statements on which the Autoriteit Consument en Markt (the Dutch consumer and markets authority) can take enforcement action. A fine is never insured, and the loss the client suffers as a result is pure financial loss: that belongs on professional indemnity insurance. For conflicts about the assignment itself, business legal expenses insurance is the appropriate instrument.
This page deals with one situation. The full overview is on Compare public and employers' liability insurance (AVB).
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What to look out for
Four points that determine the scope of your cover specifically for search advertising.
Brand names in keywords and copy
Bidding on a competing brand is not automatically prohibited, but as soon as the ad creates confusion about the origin of the offer, a trade mark dispute arises. This is the most common legal dispute in this field and it is excluded from cover. Work with an approval step for brand terms and confirm in writing who made that choice.
Bidding strategy and budget
An automated strategy optimising towards the wrong conversion value, a campaign that runs on with no end date or an import that wipes out exclusions: the result is wasted budget. That is pure financial loss, which this policy is not written for. Work with budget caps, review points and a written confirmation of every structural change.
What falls outside the cover
Excluded are infringement of trade mark and copyright, administrative fines from the Autoriteit Consument en Markt or the Autoriteit Persoonsgegevens (the Dutch data protection authority), pure financial loss from wasted budget or lost turnover, third parties' equipment in your in your care, contractual performance guarantees, and intent or deliberate recklessness under Article 7:952 of the Dutch Civil Code.
Conversion measurement and personal data
Server-side tracking, customer lists for audiences and linking webshop data mean that you process personal data for your client. Arrange that in a data processing agreement. A breach or an incorrect connection is not property damage and falls outside this policy. For that there is cyber insurance.
What does your premium depend on?
- Annual turnover: excluding media budget passed through, where that is separated by contract
- Payroll and team size: the basis for employer's liability
- Number of accounts managed: determines how many clients one mistake affects
- Sectors of your clients: regulated sectors impose stricter requirements on advertising statements
- Office arrangements: own premises, rented space or a flexible workspace with liabilities of its own
- Sum insured and excess: per claim and per insurance year
Insurers weigh these details differently. That is where your saving is.
What is covered
| Situation | AVB | BAV |
|---|---|---|
| A client trips over the projector cable in your meeting room during a quarterly session | Yes | No |
| During a workshop at the client, a monitor falls off the stand your employee moved | Yes | No |
| A conversion tag placed twice counts purchases twice, after which the client spends far too much budget for months | No | Yes |
| You forget to pause the campaigns of a departed client and advertising continues for three weeks | No | Yes |
| The ACM imposes a fine over a discount claim in your ad copy | No | No |
| A hijacked employee login gives a third party access to a client's advertising account | No | No |
Only damage you cause physically is on the left; everything that only costs money belongs in the right-hand column or nowhere.
Frequently asked questions
This is what people ask us most.
A competitor of our client sends us a cease-and-desist letter over trade mark use.
Trade mark infringement is excluded on public and employers' liability insurance, and on most professional indemnity policies as well, or covered only to a limited extent. You bear the defence costs yourself in principle, unless you have legal expenses insurance that includes intellectual property. Document who added which search term; that determines your position towards the client.
Our ad copy contained a wrong price. Who bears that?
If the client has to honour the order at that price, he suffers financial loss and will want to recover it from you. The AVB does not cover that. Set out in your terms that the client is responsible for the accuracy of prices and stock, and work with an approval round before copy goes live.
What do we need this insurance for, then?
For injury and damaged property. A visitor who falls in your office, an employee with complaints from screen work for which you are liable under Article 7:658 of the Dutch Civil Code, fire or water damage to the premises you rent, and damage to equipment at a client during a workshop. Those claims are rarer, but they can be large.
We promise a client a particular return on advertising spend.
A performance guarantee is a contractual obligation and not liability in law. What you have to repay as a result is not insurable, not even on professional indemnity insurance. Frame objectives as best-efforts obligations, name the assumptions the forecast rests on and record which factors lie outside your control.
Every situation is different. For these situations we have a separate page.
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