Undetected fraudulent insurance claims in the United Kingdom are estimated to cost society some £2.1 billion annually, and, some say, add some £50 to each policyholder's average annual insurance costs. The problem is manifest in several aspects: exaggerated 'first-party' insurance claims by an individual comprehensive insurance policyholder on their insurer, ‘malingering’ by a 'third-party' making a personal injury damages claim following a policyholder's alleged negligence, through to organised networks of criminal enterprises fabricating complex, intricate interconnected webs of fraudulent activities. The social media environment has given liability insurers a new, and increasingly potent, investigative weapon: a forensic analysis of an insurance claimant's social media footprint. Increasingly, evidence is acquired from a public social media space inhabited by a claimant in a much more cost-effective way than intrusive, expensive, video-based surveillance evidence. Investigators probe into a space where a claimant may expect a degree of privacy, and connected friends and contacts within social networks are increasingly targeted to identify networks and potential co-conspirators. The ethical parameters are often tested: such as where investigators 'friend' a claimant or a member of their network to acquire evidence for use in defending claims and civil proceedings by the claimant. This investigative, evidence-gathering process is situated in dealing with the private law civil litigation claims process, initiated by the allegedly fraudulent claimant. The private law regulation of the acquisition, deployment and purpose of this evidence differs from the conventional public regulatory and enforcement context, but shares some objectives, and engages issues of data sharing with law enforcement agencies. A recent trend has seen insurers increasingly ask civil courts in compensation litigation to visit sanctions, including imprisonment and fines, for civil contempt of court established against litigants proved to be dishonest using social media evidence, contrasted with their 'statements of truth' in documents filed by claimants in cases. This has implications beyond the insurance claims process – the scope for use in commercial litigation is yet to be explored. What are the tensions existing between private law and public law processes here? How well does the civil litigation process cope with this phenomenon? How do aspects of the Jackson reforms to the funding and costs of civil litigation affect behaviours? Do these investigation techniques sit well with domestic professional regulation and ethical behaviours? How do other jurisdictions deal with the issues? This paper aims to explore some of these topical issues.
|Publication status||Published - 9 Apr 2015|
|Event||BILETA Conference 2015 - University of the West of England|
Duration: 9 Apr 2015 → …
|Conference||BILETA Conference 2015|
|Period||9/04/15 → …|