Guiding consumers since 2009

How insurers can use social media against you

By Jessica Anne Wood

It’s normal to use your social media accounts, such as Twitter, Facebook, etc., on a daily basis, but what happens if your insurer uses it to snoop in on your daily activities? This isn’t the work of some fantasy novel – these days companies are using your social media posts as an indicator on whether you’ve been lying to them or are in fact who you say you are.

These days’ insurers tend to find out if you’ve been distracted before you got into an accident. According to a recent report, “using your phone for social media while driving could be considered reckless behaviour by an insurer, giving the insurer the right to decline a claim in the event of an accident.”

However, it is illegal to use your cell phone in any form while driving, including making or taking a phone call or sending a message via text or WhatsApp, so if they find out that you were texting or posting something on Facebook they’d be well within their rights to refuse a claim.  

But how legal is it for insurers to snoop into your personal life and even your phone to find out if you’ve been active online? Justmoney contacted several insurance companies to find out.

Can insurers access clients’ social media and use this information?

Peter Nkhuna, senior assistant Ombudsman for Short Term Insurance (OSTI), said: “Media law experts point out that when one posts something on their Facebook timeline or Tweets something, this would be no different from publishing in a newspaper. In other words, the person would have thrown that content into the public domain. This would in turn mean that any consumer of material or information in the public space would access that material or information, including insurers.”

Judge R P McLaren, Ombudsman for Long-term Insurance (OLTI), noted with regards to the use of social media in an insurance claim: “As a general observation we can say that “social media evidence” could be described as “real” evidence, in the sense that the person who has to evaluate the admissibility of the evidence and the evidential value thereof can see or read, for himself or herself, the evidence.”

Nkhuna noted that when validating claims, all accessible information will be used, which can include social media content posted by the claimant. “It must be borne in mind that at the inception of most policies the insured does agree to certain information being accessed for purposes of providing cover in terms of the policy. Sometimes even at claims stage, the insurer will require the insured to consent to certain information being accessed.  Insurers will then use this consent for purposes of validating claims or cover.

“If there is no prohibition, and the insurer does not break any laws or contravene any customs or practices in obtaining information, there would be no basis on which to not consider such publicly available material or information,” said Nkhuna.

However, social media communication may also help you in a claim against an insurer. The OLTI Annual Report for 2016, highlighted a case where WhatsApp messages were provided by an insured’s partner following her death to help prove that her death was not a suicide. A complaint was laid with the OLTI after the insurer initially repudiated the life insurance claim on the initial conclusion that it was a suicide, which the complaint argued against. Life insurers generally have a two year exclusion policy which states that if a person commits suicide in the first two years of the policy the insurer does not need to pay out any money.

In the report, OLTI noted: “The complainant further provided WhatsApp messages from the insured’s cell phone to her partner. These messages did not indicate any intention to cause harm to herself, the insured stated that she needed to take a bath as she was very cold, but she would respond to her partner’s messages after her bath. The insurer found the information helpful and decided to pay the claim.”

According to Francois Theron, Discovery Insure’s chief operations officer, stated that Discovery Insure does not use social media in the settling of claims. “We use technology to encourage and reward good driving behaviours. Discovery Insure is committed to keeping our clients safe on the roads. Our data shows that drivers are 10 times more likely to have an accident while driving late at night, than during other times of the day. To encourage clients to not drink and drive or drive late at night, they have access to discounted, safe personal driver services with our DriveMe partners – Uber, Road Trip and Scooter Angels.”

The role of a cell phone in an accident

As already noted, it is illegal to use a cell phone while driving. But how can insurers check to see if this was a contributing factor to an accident?

Nkhuna noted that when it comes to vehicle accidents and checking whether or not the use of a cell phone may have been a contributing factor, insurers will be required to gain contest from the claimant/insured to obtain beacon and billing reports from the insured’s cellular network providers.

“Insurers are generally entitled to require this as per the policy provisions. Vehicle tracking reports and telematics reports are also sometimes used. A lot of information tends to be found readily available on the web and can be discovered by simply trawling the internet or doing Google search,” noted Nkhuna.

“Discovery Insure has the ability through our telematics programme to monitor phone motion. Through the Vitalitydrive programme Discovery Insure rewards clients in a positive way, to not use their phones while driving, but will not repudiate a claim based on the data,” said Theron.

When it comes to the use of using a GPS app on a cell phone, Nkhuna pointed out that anything which has the potential to result in a harmful situation can count as reckless behaviour, depending on circumstances. As such, if the use of the GPS distracts the driver in any way, this could be seen as reckless behaviour.

Nkhunaexplained: “Recklessness is a technical legal concept to be determined on each set of facts and circumstances. Should it be established that the conduct by the insured person amounts to recklessness or gross negligence, the insurer may be entitled to decline the relevant claim. This also depends on the policy provisions.”

Tracking your social media behaviour

When it comes to using your social media activity in an insurance claim, timing will play a role. This is particularly true when it comes to claiming for an accident where cell phone or social media use is suspected as a possible cause.

It all depends on the available information, how it can reasonably be interpreted and deductions made from it. If on “a balance of probabilities” a particular conclusion can be made, and this legal (civil law) standard met, then the insurer may be able to rely on the information to decline liability, if the policy terms and conditions so permit,” said Nkhuna.

In other words, if your social media, text messaging or call history indicate that you may have been using your phone at the time of the accident, your insurer could use this to deny your claim.

Nkhuna added that it is difficult to speculate as to the use of social media information by insurers and how this could impact an insured’s claim. “There are many technical issues involved and ultimately what may or not occur, and what is fair practice or not can only be properly judged on the specific set of facts and circumstances.”

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