By Sarah Schmidt, Canwest News Service November 11, 2009
Canada’s privacy czar is facing demands from key players in the insurance industry to butt out of claim investigations and to stop complaining about the use of covert video surveillance to catch suspected insurance cheats. After fielding a growing number of complaints against insurance companies, the Office of the Privacy Commissioner issued guidelines to the private sector in May to protect people against covert video surveillance, characterizing it as an “extremely privacy-invasive form of technology” to be considered “only in the most limited cases.”
“Covert surveillance is an intrusive act, and, if there are other means to resolve a dispute, we believe they should be explored first,” such as independent medical exams, assistant commissioner Elizabeth Denham said. Private investigators have fired back, calling on the insurance industry to disregard the directives. “Our advice to the industry is, if you need to investigate, do not be deterred by the privacy commissioner’s guidelines,” said Norman Groot, counsel to the Canadian Association of Private Investigators.
“We challenge the privacy commissioner on the existence and scope of a right to privacy in public places, and we say that, where there are flags of fraud, the right to defend and the right to investigate supersedes another’s right to privacy of their image in a public place.” The country’s privacy watchdog is also fending off a State Farm Insurance legal challenge questioning her jurisdiction over investigations in the first place.
The largest property and casualty insurer in North America is asking the federal court to rule that personal information collected during these investigations, including copies of covert video surveillance reports and tapes, falls outside the scope of Canada’s private sector privacy law. State Farm turned to the court in response to an investigation of a complaint against the insurance company. A man under covert video surveillance complained to the privacy commissioner after the company refused to provide him with the information compiled about him.
State Farm is seeking an order that the Personal Information Protection and Electronic Documents Act (PIPEDA) does not apply to the privacy interests of the man under surveillance. This is the second challenge to the privacy czar’s authority this year from an insurance company.
Following an investigation into the covert surveillance practices of a private investigation firm working on behalf of an insurance company, the privacy commissioner determined the complaint was well-founded and recommended the firm depersonalize or remove third parties caught on video without their consent. In this case, a mother and daughter were videotaped during covert surveillance of the mother’s sister, who had begun legal proceedings against her insurer over benefits following a car accident.
The privacy commissioner also found that the collection, use or disclosure of personal information about third parties without their consent was only acceptable in certain, specific situations: for example, when the information is relevant to the purpose of the collection of information about the subject of the surveillance. The privacy commissioner declined to bring an application to Federal Court to enforce the recommendations even though the firm refused to implement the recommendations.
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