'With "friends" like these...': Social media environments and insurance fraud investigation

The rise of social media has given insurers a potent investigative weapon: forensic analysis of a claimant's social media footprint. Evidence is increasingly acquired from a public social media space in which a claimant inhabits with a degree of expected privacy, and connected friends and contacts within social networks are increasingly investigated to identify networks and potential co-conspirators. Ethical issues abound where investigators 'friend' a claimant or a member of their network to acquire evidence. The gathering of this evidence trail often arises in dealing with the private law civil litigation claims process, initiated by the third party 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'. What tensions exist between private and public law processes here? How well does the civil litigation process cope with this phenomenon? Will aspects of the Jackson reforms 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.