With occupational disease claims hitting the headlines in recent months, as the Supreme Court seeks to resolve disputes, Ben FitzHugh of Berrymans Lace Mawer, comments on how the industry can make best use of social networking sites when defending such claims.
The use of social networking sites within the claims validation arena is a new and evolving phenomenon. The application of these sites as research tools is something that has proved, in many cases, to be the silver bullet and the insurance industry and its agents are becoming wise to the benefits — and pitfalls — of using these types of sources within civil litigation.
Social networking sites and the information they hold can assist all areas of an insurer’s business and, while traditionally used as an anti-fraud tool, it is a credit to the ingenuity of the analytical community that their use has been extended to cover other business areas, including disease claims.
The popularity of social networking sites has swept the globe in the past decade and it almost seems inconceivable that Facebook, for example, was not available to the masses until eight years ago. In the UK, it has been calculated 23 million people hold Facebook accounts and, when compared against the population of 61 million, that equates to a penetration of 38% registered on this one site. With regards to tracing individuals via Facebook, that means that you have a one-in-2.5 chance of finding a UK resident on the site.
Corroborating accounts
One of the principal obstacles facing disease practitioners in cases is being able to corroborate the accounts provided by claimants in their witness evidence and being able to gauge the nature and extent of risk exposure at a given time. Social networking sites greatly assist in being able to help trace individuals who may have worked alongside the claimant that will, in turn, be able to assist in corroborating the information provided.
From a research point of view, social networking sites have one important feature in common: they all have in-built search facilities. The complexity of these facilities varies from site to site, ranging from simple name checks to geographical profiling, and they also make e-mail address and workplace searches possible.
The most useful sites for research on individuals are Facebook and Friends Reunited — the latter being of particular use in long-tail cases when trying to corroborate witness evidence. Friends Reunited has traditionally been seen as the preserve of the older demographic and this is a particular advantage in disease cases, when an illness might not manifest itself for many years. It can be used to great effect when trying to collate a list of names of former employees or company executives of a particular company in order to then contact them to see if they are able to assist in the defence of the claim.
The process of tracing individuals via social networking sites is split into two distinct phases. Phase one is the identification of names of individuals who were associated with a company or organisation during a specific date range at a specific location. Phase two is the tracing of these individuals, which can be done via enquiry sources in order to identify residential addresses or telephone contact details. The process can help reduce the lifecycle of the case, thereby having a direct impact on the costs of the case to the insurer.
It is not only the traditionally well-known social networking sites that are of use in disease cases; other forms of platforms like online discussion forums and organisations — for example, Lions or Round Table — can provide valuable sources of information as to a person’s whereabouts. They can also provide a means of contacting individuals where no residential address or contact details can be identified.
Legal implications
While social networking sites may appear, on face value, to be the holy grail of the research world, they can turn out to be no more than a poisoned chalice. There are considerable legal ramifications surrounding the day-to-day use of these sites and four main areas to be aware of.
First is breach of contract — each individual site has specific guidelines and requirements that users agree to before they start using the service. These can include prohibiting a person utilising the site for commercial purposes, falsely misrepresenting oneself and making copies of copyrighted documents.
Next comes the issue of copyright. The copyright of digital media remains with the owner and there is considerable debate as to who owns the copyright to, among other things, images and videos posted to a user’s site. These items can be crucial pieces of evidence in helping to defeat or reduce the value of a claim by providing evidence that a person’s injuries are not as serious as alleged.
Data protection issues
Insurers must also be alert to data protection issues — in particular section 55 of the Data Protection Act 1998. The information that is uploaded to a social networking profile is considered personal data. The Act protects an individual’s rights with regards to how this data is used and there are potential ramifications for misuse of data under s55. This section governs the unlawful obtaining of personal data.
Finally, there is professional conduct. The lawful use of these sites by an organisation is crucial, in order to ensure brand protection and make sure that reputation remains intact. Consequently, there are some basic rules to ensure the lawful use of social networking sites.
Under no circumstances create a false profile or log-in under false details — users should never misrepresent themselves. Also, the use of information contained on social networking sites as evidence is only acceptable when the information is available from a public view. Any form of ‘hacking’ or deliberate deception to obtain information is clearly unlawful.
Insurers must also make sure their organisation has a ridged and well-enforced policy for the use of social networking media. This will ensure usage is legal and done so in accordance with the terms and conditions of the service provider. Express permission is required for each provider to ensure usage is compliant.
Social networks offer a valuable insight into people’s lives and also assist in the tracing of individuals of interest. But a note of caution must be added with regards to the use of these sites, as organisations seeking to use them must be aware of the complex legal issues surrounding them.
Medico-Legal News Source: PostOnline
