It’s not Big Brother, but it might be watching you.
There are a lot of myths about private investigators. In movies, we see them break into homes, rummage through office drawers, or obtain private information illegally – acts that real private investigators aren't allowed to do.
Usually used for things like identity left, infidelity and investment scams, private investigators can be used in insurance claims too.
We often have clients ask us whether they will be followed or monitored, and while it’s never a certainty we think it’s safest to assume it could happen. So, how far can investigators go? What is legal? What should you do if you notice you’re being watched?
What is insurance surveillance?
Surveillance can be used by insurance companies to obtain evidence of the true extent of a claimant’s injuries. Basically, they want to ensure that your claim is genuine.
For example, if you were injured at work, WorkCover might conduct surveillance of your activities to determine whether you are as physically restricted to the extent that you claim.
This may involve a private investigator videoing or photographing you while you’re going about your daily activities. They may also monitor your social media accounts, like Facebook and Instagram, for photos or posts that contradict evidence you’ve given either about your accident or your symptoms, limitations and restrictions.
This behaviour is completely legal if conducted by a licensed professional.
Can anyone be a private investigator?
No. A “private investigator” is defined in the Security Providers Act 1993 as a person who obtains private information (usually through surveillance) about another person, without their express consent. They are rewarded for this information.
It's a very small occupation with the most recent data showing only about 700 people employed as private investigators in Australia. This doesn’t mean that anyone who carries out surveillance can be considered a “private investigator” – that’s likely illegal and you should probably call the police.
What are private investigators NOT allowed to do?
Private investigators don’t have any rights beyond those of an ordinary citizen. They are bound by all state and Commonwealth laws surrounding privacy as set out in the Information Privacy Act 2009 (Qld) and the Privacy Act 1988 (Cth).
Private investigators cannot legally:
- Force entry to a premises;
- Trespass on your property;
- Seize your property;
- Bug your phone;
- Access confidential government-held information;
- Use a listening device to overhear, record or monitor a private conversation that they are not a party to;
- Take video or photographs of you in a private place or doing a private act in circumstances where you would reasonably expect privacy.
If you feel that a private investigator is acting unethically and is not abiding by the law, you can lodge a complaint with the Office of Fair Trading.
Can a private investigator record me without my consent?
It depends. Legally, anyone is allowed to take video or photos of you going about your daily life inside or outside of your own home, or at another private property. They may also follow you when you leave your house and film you in public places.
For a personal injury claim, they may follow you to your medical appointments to confirm your identity. However, as mentioned above – they cannot trespass, and they cannot record you when privacy is reasonably expected.
According to Section 227A of the Criminal Code 1899 (Qld), it's an offence to video record people without their consent in such private situations like undressing, using the bathroom, showering or in other intimate situations. It's also against the law under the Invasion of Privacy Act 1971 (Qld) to use a device to listen to, record or monitor private conversations of others without their permission when you're not a party to it.
What should you do if you’re under surveillance?
While it’s not something to spend too much time worrying about, it is important to remember that compensation claims are taken seriously and are investigated with extreme scrutiny. So, it’s in your best interests to act ethically. Honesty is the best policy; don’t exaggerate the severity of your injuries or say you can’t do things that you actually can.
For example, if you’re claiming that you can’t work as a tradie anymore, and you’re then caught on film working at a construction site, your claim could be rejected. It may also result in being charged fees from your lawyer or the insurance company for wasted time.
While it might be uncomfortable to have a private investigator follow you around, it's usually temporary and will stop once the insurance company is satisfied that you’re not lying about your claim. Being aware of your rights, and what the private investigator can and cannot do, will help ensure it’s a fair and level playing field for everyone.