Social Media as an Investigative Tool for Claims Professionals
Social Media as an Investigative Tool for Claims Professionals03.05.2019
The increased presence and use of social media by insurance businesses has the ripple effect of increasing the exposure for insurance professionals to claims that could fall within an E&O, Professional Liability or even General Liability policy. Many of the risks that are presented are not new, and include breach of consumer protection legislation, breach of privacy laws, employment related claims, liability arising out of a business failure to monitor use of private information, copyright infringement, and defamation and reputational risks. An understanding and appreciation of this exposure is a critical component of an insurance business’ risk management practices.
For this discussion, I will focus on the now commonplace use of social media by claims professionals as an investigative tool. This is not surprising as social media is a relatively inexpensive vehicle to provide what is often an unfiltered view of an individual’s personal and professional life. This goes beyond looking at Facebook and other sites as, for example, insurers are partnering with analytic companies searching claimants’ social media profiles to corroborate claim information and support investigations.
To begin with, I am admittedly aware of no prohibition to reviewing social network pages which is public information or what has been put out “for the world to see”. This is an acceptable claim investigation tool and Courts had even authorized looking into private social media accounts when, for example, a claimant alleges the he or she could no longer participate in certain activities as a result of injuries sustained in an accident The Courts, however, tend to protect what is “private” information, and will look at who is looking at the information, how it is obtained, and how is the information used. A good rule of thumb is relevance and materiality.
What about other ways of obtaining social network information beyond reviewing social media pages? Pretexting is the use of some impersonation to trick someone into releasing personal information. The National Association of Insurance Commissioner’s issued a model act that prohibits pretexting by an insurance institution, agent or support organization in connection with an insurance transaction. But pretexting is allowable, so long as not violating a statutory privilege, when used to investigate a claim where there is a reasonable belief of criminal activity, fraud, material misrepresentation, or material non-disclosure with respect a claim.
One area that has yet to be specifically addressed is adding a person as a “friend” or “following” to access not otherwise public information as part of a claim investigation. Absent disclosure, lawyers are generally prohibited from such activity absent disclosure as unethical and deceptive, and a claim professional would likely be held to a similar standard. Such standards include not engaging in misrepresentations, false pretenses, or deceptive activity, including setting up fake social media accounts, to get around a claimant’s privacy settings and obtaining information not available “for the world to see”.
With all of this in mind, the use and reliance of social media must be kept in perspective. It simply does not present a complete picture as people tend to not put out on social media images of them “crying in a dark room”. A claim investigation revelation that may viewed as a devastating blow to an insurance claim may in fact have the opposite impact.
It is equally useful to keep in mind that claimants’ attorneys are warning their clients about insurers’ use of social media “against you”. This includes a variety of tactics to respond to such investigative tools such as stop posting, deactivate accounts or remove older posts that could be misunderstood, incriminating or used as ammunition. It is also being recommended to change privacy settings to control who sees a person’s social media content. Finally, claimants are also being advised let friends and family know that he or she does not want to be tagged, mentioned, or included in photos or posts, as well as asking them not to accept friend requests from people they do not know.