‘Keeping your friends close … and enemies closer?' Probing the social media space in insurance fraud investigations

Fraudulent insurance claims by policyholders and third parties are alleged to cost some £2.1billion annually, adding some £50 to each policyholder's average annual costs. In their continuing fight against fraud, insurers increasingly use of a potent investigative weapon: the forensic analysis of a claimant’s social media footprint. This is a space inhabited by claimants with an expectation of privacy. The encroachment into this territory by investigation tactics can lead to tensions between a claimant’s expectation of privacy and a defendant/insurer’s access to justice. It may also engage non-participants to beyond a claimant’s private law claim for damages: investigators may 'friend' the claimant or a member of the claimant’s social network, joining groups and making connections, probing for a nexus between potential co-conspirators. Ethical and professional conduct issues arise as a result. The fruits of investigations may be shared with law enforcement agencies, or used by insurers in asking civil courts in compensation litigation to visit sanctions, including imprisonment, for civil contempt of court established against litigants proved to be dishonest using social media evidence, contrasted with their 'statements of truth'. This paper aims to explore some of the tensions between private and public law processes in this area, in the civil dispute resolution process and domestic professional regulation and ethical behaviours.