A woman’s activities recorded and videotaped by a private investigator hired by an insurance company

PIPEDA Case Summary #2005-311

(Principles 4.3)

Complaint

A woman alleged that an insurance company, with the use of a private investigator, collected her personal information without her knowledge or consent when it conducted surveillance and videotaped her activities.

Summary of Investigation

In 2000, the woman was in a motor vehicle accident. She subsequently filed a lawsuit against the driver of the other vehicle. The woman owned a business and claimed that her injuries not only resulted in a loss of income, but also prevented her from performing her domestic duties. The insurance company representing the other driver stated that the woman’s testimony at the examination for discovery hearing and her medical reports revealed discrepancies and inconsistencies with respect to the injuries claimed. As such, the insurance company decided to conduct surveillance on the woman to record and observe her functional abilities on a day-to-day basis when she was not explicitly being examined for the purpose of creating a record for litigation. The insurance company hired a private investigator to conduct the surveillance.

The private investigator followed the woman for approximately three weeks. The surveillance took place at her home, place of business, shopping centers, etc. The private investigator prepared a report outlining the date that the surveillance took place, the time, location and what was seen. Some of the woman’s activities were videotaped, such as her carrying packages, boxes, leaving her place of business, driving to shopping centers and so forth.

The information collected by the insurance company, including the videotape, was used in Court. The woman then filed complaints with this Office stating that the insurance company and private investigator collected her personal information without her knowledge or consent.

The insurance company and private investigator expressed their view that the woman had consented to the collection of her personal information when she filed a claim against its client – the other driver. The insurance company stated that it has a duty to defend its client and an obligation to verify the truth of the claim. It would be contrary to the established principle of law if a claimant could put forward a claim and then refuse to consent to the verification of that claim.

Findings

Issued August 9, 2005

Application: Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use and disclosure of personal information, except where inappropriate.

The Assistant Privacy Commissioner reviewed the circumstances surrounding the insurance company’s decision to conduct surveillance, including video surveillance on the woman. She agreed that when an individual initiates a lawsuit there is an implied consent that the other party to the suit may collect information required to defend itself against the damages being sought by the individual who filed the suit. When the woman initiated her lawsuit against the insurance company’s client and when her testimony and medical reports revealed discrepancies and were inconsistent with the injuries claimed, the Assistant Privacy Commissioner concluded that she gave her implied consent to the collection of her personal information.

That being said, the Assistant Privacy Commissioner emphasized that implied consent is not without limitations. Implied consent does not authorize unlimited or uncontrolled access to an individual’s personal information, but only to the extent it is relevant to the merits of the case and the conduct of the defense. In this case, the Assistant Privacy Commissioner noted that the collection of the woman’s personal information was limited to what was necessary for the insurance company to defend itself against her Court action.

The Assistant Commissioner concluded that the complaints were not well-founded.