Is Social Media Investigation Legal?

Many lives are now conducted in a digital world of LinkedIn, Twitter, Facebook and other internet platforms. Those with access to specialist capabilities can monitor this world and uncover the digital footprints left behind by even the most technically astute. Here, there is an ability to go beyond mere ‘Google fishing’, which has significant potential in the fight against insurance fraud.

While claimants are becoming increasingly surveillance-aware, a tendency remains to be substantially less guarded when using the internet. Through analysis of publically available internet data it is possible to gain a ‘pattern of life’ read-out in a few hours, rather than the days it can take through traditional surveillance. Such analysis can save expensive man-hours and may negate the need for physical investigation altogether.

But while it can be a cost-effective tool for claims handlers, one aspect of social media investigation (SMI) still causes concern among the insurance industry: is it legal?

The law often has to play catch-up with technology, but while using social media in this way is a new approach, it’s also just another method of conducting surveillance and the same legal concepts can be applied.

The requirements of the Data Protection Act 1998 (DTA) will be familiar to many in the industry, and the issue of consent is sometimes raised in relation to SMI. In the fi rst instance, SMI can be facilitated by the incorporation of clear terms in cover policies and the insurers’ data protection policy. An insured’s policy should be the fi rst port of call as existing terms may already be drafted widely enough to cover SMI processing. Where this does not offer an answer, the DTA provides useful exceptions to the requirement for consent. Personal data may be processed without consent for the purposes of detecting and preventing crime and also in ongoing legal proceedings. Each case must be handled according to its own facts, but these exceptions may apply to an insurer looking to detect or prevent insurance fraud, or to assist in defending a claim during litigation.

Also, human rights law provides no more a barrier to SMI than to more traditional forms of investigation. An individual’s right to privacy is not absolute and the courts must weigh it against the public interest in combating fraud. While a heavyhanded approach to SMI may fi nd an insurer on the wrong side of this balancing act, deploying the right expertise can ensure that SMI is used proportionately and lawfully.

There is also a need to understand how media platforms operate. It is important to recognise the delineation between private and public forums and understand what activities may fall foul of websites’ terms and conditions of use. What is proportionate can vary from case-to-case, but it will rarely if ever be proportionate to create false accounts, purposefully mislead people, or monitor private ‘chats’.

These are some of the issues to consider before using SMI techniques, but ultimately it is a new and exciting opportunity for improving the efficiency of claims handling.

Interview with Stewart Griffiths published May 2013