What is the EU GDPR?
The EU General Data Protection Regulation (GDPR) is the most important change in data privacy regulation in recent times. It came into force in the UK on 25th May 2018. Designed in response to advances in technology and the methodologies by which data is collected, stored and shared in comparison to 20 years ago (when the DPA was first enacted), the GDPR provides EU citizens with enhanced protection from data breaches and gives them greater control over their privacy. The GDPR applies to all companies and organisations processing the personal data of people residing in the EU; the nature of an organisation’s business and the sector in which it operates makes no difference to that organisation’s obligation to comply with EU data protection law. It also applies to companies and organisations outside the EU if they process data of data subjects within the EU. Crucially it affords individuals more control over their data by allowing them to request that their personal data be erased (also referred to as the ‘right to be forgotten’). This includes requesting social media channels delete information they posted in their childhood and the reliance on default opt-out or pre-selected ‘tick boxes’ to give consent for organisations to collect personal data is no longer acceptable. The Information Commissioners’ Office Guide to GDPR can be accessed here.

What is the Association of British Investigators?
The Association of British Investigators (ABI) is the kite mark of the UK private investigation industry.
“It is a fact that the only effectively vetted, regulated and accountable private investigators in the UK today are the members of the ABI.”
(House of Commons Home Affairs Committee, July 2012)
The ABI campaigns tirelessly for regulation and promotes excellence, integrity and professionalism within the private investigation industry. “It is vital we have proper regulation of private investigators to ensure rigorous standards in this sector and the respect of individuals’ rights to privacy.” (Theresa May, July 2013)
The ABI is endorsed by The Law Society of England & Wales and is included in the service provider scheme for The Law Society of Scotland.
For further details please visit The Association of British Investigators.

Why do Insurers use surveillance in personal injury cases?
Surveillance in personal injury cases is generally used in high value claims where ongoing disability is alleged and an Insurer suspects fraud or exaggeration of symptoms. Surveillance can include covert filming of a claimant engaged in normal lifestyle activities and online interrogation of social media intelligence (SOCMINT) and open source intelligence (OSINT).

Insurers often engage the services of surveillance companies to discreetly observer claimants for the purpose of validating the veracity of their claims; essentially to assist in determining whether a claimant is genuine. The purpose of surveillance in this context is to help ensure genuine claimants are awarded fair payments and to identify those who seek to profit at the expense of honest policyholders, whether through malingering, exaggeration or fraud.

Official statistics released by the Association of British Insurers reveal the Industry detected 125,000 dishonest insurance claims valued at £1.3 billion in 2016. Insurers contend they do everything possible to keep premiums down and tackling fraud, which drives up prices for honest policy holders, is a key strategic priority. Insurers acknowledge the majority of personal injury claimants are genuine and millions are paid out every day.

What is a Data Protection Impact Assessment?
When data processing activity is likely to result in a high risk to data subjects, Article 35 of the EU General Data Protection Regulation makes it a lawful requirement for a Data Protection Impact Assessment to be undertaken. A DPIA must include:

• A systematic description of the processing methods and their justification
• An assessment of the processing necessity and proportionality
• An assessment of any risks to data subject rights
• A comprehensive framework to address the risks; this must detail safeguards, security and measures to protect the personal data

Companies and organisations whose data processing activities are not considered high risk are nevertheless encouraged by the Information Commissioner’s Office to use them as ‘best practice.

Is surveillance a breach of my human rights?
Providing surveillance evidence is obtained in a public environment and the methods used to obtain it are not unnecessarily intrusive, disproportionate or illegal it does not contravene your human rights.

The Human Rights Act 1998 (‘the Act’) sets out the fundamental rights and freedoms to which everyone in the UK is entitled. There are many misconceptions relating to personal injury surveillance and the Act; here are the facts:

• 1. The Act applies to Public Authorities (not insurers or private investigators*) and demands compliance with the Articles of the European Convention on Human Rights.
• 2. The Act is only enforceable against Public Authorities (not insurers or private investigators*) however, reputable surveillance and investigation companies consider it best practice to adhere to the spirit of the Act and base their business practices and operational standards upon it.
• 3. The Act sets out our human rights in a series of ‘Articles’, the two most relevant to surveillance being Respect for private and family life, home and correspondence (Article 8) and the Right to a Fair Trial (Article 6).

A claimant will cite Article 8 when objecting to surveillance evidence whilst a defendant will counter with Article 6 when seeking to rely on it. The prevailing objective is to ensure justice for all parties and when cases litigate, the Courts ruling is sacrosanct.
*Unless acting as agents for a Public Authority

Is personal injury surveillance legal?
Currently it is not illegal to observe a personal injury claimant in the UK providing certain caveats are satisfied:

• 1. The surveillance must be conducted in a public space, defined as any environment to which the public has access by right or invitation, whether on payment or otherwise.
• 2. There must be a legitimate reason for surveillance; insurers cannot instruct surveillance speculatively in the hope of obtaining useful evidence to undermine a claimant.
• 3. The surveillance must be lawful, proportionate and can only go as far as is necessary to achieve its objective.

Although less common, Insurers also instruct post-settlement surveillance for the purpose of lodging an appeal to reduce or even reverse compensation awards if exaggeration or fraud can be proven.

What is acceptable filming practice and what is not?
Reputable private companies providing surveillance and investigation services will publish strict guidance to staff which will usually include mandatory adherence to a code of conduct based on best practice, such as British Standard 102000 ‘Code of practice for the provision of investigative services’ and the Association of British Insurers ‘Guidelines on the instruction and use of private investigators. Such codes should also reflect the spirit of the European Convention on Human Rights.

Examples of acceptable filming practice include:

• PUBLIC VIEW Claimants undertaking activity on private land when the evidence can be obtained from a public vantage point including claimants in gardens, driveways and in the interior of domestic garages or other outbuildings providing the investigators do not trespass onto private land and the activity inside is on clear public view.
• PLACE OF EMPLOYMENT (Public) Claimants at their place of employment provided the public has access, on payment or otherwise.
• PUBLIC ENVIRONMENT Claimants in an environment where the public has unlimited access, indoors or out, including but not limited to retail outlets, nightclubs, public houses, restaurants, cinemas and leisure centres.

*There have been occasions when private investigators have entered the homes of claimants and obtained covert evidence under the guise of a pretext; Jones v University of Warwick [2003] is one such example. The evidence proved the claimant was exaggerating her symptoms and was therefore ruled admissible. However, although the Court ruled the intrusion was justified it imposed a costs penalty against the Defendant for the morally dubious tactics used by their surveillance agents.

• PLACE OF EMPLOYMENT (Private) Claimants at their place of employment where public access is prohibited, including office blocks and commercial premises.
• NHS PREMISES and SURGERIES Claimants should not be filmed inside NHS premises or surgeries; there is a reasonable expectation of privacy in these environments.
• PRIVATE LAND Claimants on private land which is either part of their property or any adjoining property, where film cannot be obtained from an ordinary standing or seated position on a public highway
• PLACES of WORSHIPClaimants attending churches, mosques, synagogues, cemeteries, crematoriums or other sacred land; there is a reasonable expectation of privacy in these environments.
• STATE OF UNDRESS A claimant or a juvenile in a state of complete or partial undress (including underwear), irrespective of a public environment, in acknowledgement of the clear moral and ethical considerations.

Reputable private companies will promote a culture where legality shares equal status with ethics and morality. It isn’t simply a question of ensuring legal compliance; decency and respect must also be observed in equal measure.

Is the use of tracking devices lawful?
The ‘use’ of GSM, GPRS or SMS covert surveillance systems (tracking devices), is not illegal however, their ‘deployment’ can be. For example, a surveillance operative who walks onto a domestic driveway under cover of darkness to attach a tracking device to the underside of a claimant’s parked vehicle is trespassing (a common law tort). Consequently, many reputable surveillance and investigation companies consider the use of tracking devices intrusive and unethical.

See the Association of British Investigators’ Good Practice Guide & Policy for the Use & Deployment of GPS Electronic Tracking Devices.

I have been served with surveillance evidence. Can I challenge it?
You are not alone. The use of surveillance evidence by insurers in higher value personal injury cases is commonplace and you can absolutely challenge it.

Often the issue of liability is settled early in a claim cycle, but causation and quantum are contentious issues that take longer to reach resolution. It can be upsetting and unnerving to learn you (and sometimes family and friends), have been covertly surveyed. However, a genuine claimant has nothing to fear since whatever activities they have been filmed undertaking will be a true representation of their lifestyle and mobility.

There is definite value in objectively viewing and evaluating the surveillance evidence to afford an opportunity to provide context or where appropriate, to challenge its veracity. A thorough evaluation should include access to the unedited surveillance evidence including written or typed logs and records made by the surveillance operatives; the latter are important since they will enable you to cross reference and identify potential discrepancies.

In the event concerns arise regarding the authenticity of the evidence or the methods used to obtain it, a video evidence credibility analysis service can provide specialist assistance.

To request further details please email Specialised Investigation Services