NOTHING HAS CHANGED!

Id like to add my thoughts to the recent debate regarding an apparent new found hesitance amongst insurers when instructing investigators and particularly surveillance experts. We have already heard from various quarters of lower than usual surveillance instructions being recorded, those reductions largely accredited to adverse press revelations and the FCA Thematic Review findings. Many insurers predict new and higher level sign-off rules being implemented in the months to come but is this making rods for backs? There are few who would argue that the FCA Review was probably born out of Leveson and it is clear the findings did highlight some material lacking on the due diligence front between Insurers and Investigators, particularly the absence of Service Level Agreements and Contracts. However, in rectifying the situation to formalise those contractual relationships, I do not believe the Insurance Industry should self inflict itself with any unnecessary hurdles that could hinder easy and ready access, when needed, to the wonderfully powerful defence mechanism that is covert surveillance. I say this for one simple reason in law, nothing has changed. The same exemptions within DPA law and ECHR legislation upon which the industry has always relied to legitimately protect itself, still exist post Leveson, post Press revelations and post FCA Review. So, if the law hasnt changed then what has? To answer that question we perhaps need to look at what we are doing right now that we werent doing previously and that answer is applying more attention to the justification of any intrusion that covert surveillance may bring. Once again, nothing has changed here. The Information Commissioners Office have always advocated the application of Privacy Impact Assessments, (PIAs) and whilst not a legal requirement, a PIA is recognised by the Regulators as desirable and in turn, solid best practice. The irony to all of this is that almost to a man, insurers have been undertaking such a PIA process, they just didnt bother to formally demonstrate or document it, least of all within instructions. There are dozens of opportunistic scenarios and eventualities that often present themselves to an insurer when validating and defending a large loss PI claim, the new climate simply requires a greater degree of transparency as to how a decision is reached to go with surveillance. (We at Brownsword have actually presented the ICO with a selection of typical scenarios that they now agree could form part of the PIA consideration process.) A PIA does need not be an onerous exercise by any means. I have seen working examples that are limited to a single A4 sheet and still demonstrate that due and requisite consideration to the impact on an individuals privacy have been both considered and achieved. Looking forward, (and no doubt a debate for another day) we have EU Data Reform proposals that look set to only further enhance and strengthen an EU citizens rights re processing personal data without explicit consent. It is simply inevitable that a greater degree of transparency of process will be required if we are to satisfy exemption from explicit consent protocols. It seems therefore there is no time like the present to become more demonstrative in our decision making based on existing sound reasoning, and in the process, get back to applying surveillance to every case where it is justified. We live in a post Summers -v- Fairclough Homes world where cases can, and now have, been struck out for abuse of process. Common to all those landmark cases is always the damning video evidence, in fact an Appeal Court Judge has even said it is essential to the process.

We are now entering a period where arguably covert surveillance will be of more potential value than ever before to insurers. It would be a travesty to let such an opportunity slip by, surely a little pre-deployment justification work is a very small price to pay isnt it?