Texting Exposures Relating To Agency E&O

Texting Exposures Relating To Agency E&O

I have spent my last few blogs discussing a professional’s use of social media.  In fact, I will be presenting a speech later this month to a group of about 350 insurance professionals.  In preparation for this presentation, I was asked to address a professional’s use of texting as part of the social media seminar.  I thought it useful to discuss a portion of the texting discourse here.

A good place to start is the recognition that a professional’s use of the internet goes beyond a business website to the use of social media and texting on a cell phone as the most convenient and used communication tool.  This should come as no surprise as texting has a lower cost than traditional mediums.  It is the “cure” for phone tag delays allowing for faster turnaround of questions/answers and exchanging information with clients, prospects and third-parties alike.

Texting however comes with its own set of risks based on its casual and less formal nature.  When one receives a text, he or she usually feels a “compelling” need to respond.  Such responses tend to be more likely (i) prone to mistakes; (ii) emotional than professional; and (iii) inconsistent with the marketing/service tone of the business.   Since texts are typically much shorter than other forms of communication, they equally have the potential to be taken out of context. 

Texting also has its challenges that should be kept in mind.  If a client texts you, that is likely how the client wants to receive a response (at least initially).  Moreover, under such a circumstance, a client expects such a response “immediately”.  This could be troublesome to meet client expectations if the professional receiving the text is sick, on vacation, no longer employed, or even promised to do something confirmed in a text that cannot or should not be done (and the professional does not want to respond to such a text).

With this in mind, as with any form of written communication, a text presents the same type of exposures ranging from wrongful professional advice/misrepresentation to defamation to personal data/privacy issues.  A professional’s texting policy should therefore be no different than other mediums (phone calls, emails), and texts needs to be documented into the software management system with the author, date and time, and summary of the text.  Other texting guidelines should include: (i) identify employees permitted to use text in daily professional activities; (ii) remind that the text is a professional communicative tool; (iii) make sure to distinguish between fact and opinion in a text, and do not engage in personal attacks on competitors, other professionals and the like; and, (iv) establish ramifications for violating professional texting policy.

One big “no no” regardless of the profession is the exchange of a client’s personal identifiable information, commonly referred to as PII.  (I could and may dedicate a whole blog to the issue.) This is data or info that can be used to identify a person, and includes a telephone number, address, date of birth, driver license number, social security number, credit card number and even a mother’s maiden name.  The driving concern is that a text is not secure for exchanging PII, and clients may be lulled to provide PII by the apparent anonymity of texting.  A professional could face a claim from a client for damage from identity theft not to mention fines and penalties for violating federal and/or state laws regulating PII.

Finally, I would be remiss if I did not mention the Telephone Consumer Protection Act (TCPA) that has been interpreted to commercial texts.  The stature requires written consent before sending text messages, and an existing commercial relationship is not an exception.  One solution to meet this requirement is to have clients sign and maintain an opt-in form, and this could be part of the initial client set up procedures.  This is something you should discuss with legal counsel or at least your professional business’ management.