Do you ever feel like you’re being watched? Is there a strange car parked outside your house? Well, if you’re on a long-term disability claim, there’s a chance that your insurance company has you under surveillance. This will probably feel like a huge invasion of privacy, and you might be wondering what, if anything, you can do about it.
In this article, as part of our Ultimate Guide to Long-Term Disability Benefits, I answer some common questions and touch on some key points about surveillance by an insurance company.
Is this legal?
This is the first question a lot of people ask when they notice someone surveilling them.
Not only is surveillance legal, but it’s actually more common than most people think. It’s especially common for high-income earners, younger people, people with an invisible illness, and people who have been approved to receive benefits beyond 2 years. If the insurance company doubts your credibility at all, they will probably do some surveillance.
It is legal for insurance companies to obtain picture and video surveillance from a public space using cameras, video cameras, night vision, and other electronics. However, it’s illegal to listen to or record third party conversations without your consent, so they shouldn't be using any listening devices or wire taps.
They aren’t legally allowed to hack into your electronics or associated accounts, however. This includes your cell phone, computer, email, or social media accounts.
As David nicely put it on the Resolute Legal forums:
“The right to privacy is constantly evolving in the courts, but generally speaking, courts have said that people involved in insurance claims or lawsuits have a reduced right to privacy as compared to the general public. The right to privacy is a sliding scale, so you have greater expectation of privacy in certain situations as compared to others. The context is always important."
How close can they get to me?
Private investigators have to do their surveillance from a public area. It may seem simple, but curtains are helpful in these situations so they can’t take photos or videos of you inside your home from their spot on the street.
Aerial surveillance has been around for many years, but recently in Canada it has become more and more common to use drones for surveillance. There is something called “trespass into airspace” which holds drones to the same standards as private investigators on the ground. That is to say, the drones need to be on public property when recording you. In regards to your home, this means they need to be outside your property line.
Is surveillance harassment?
In Canada, harassment is any unwanted physical or verbal behaviour that offends or humiliates you.
Surveillance is only considered harassment if it is in breach of the privacy laws set in place for private investigators. This includes the things I mentioned earlier, like using listening devices to record you, going on your private property to approach you, or entering your home. This doesn’t include following you to shopping centres or watching you do daily activities in your home or yard.
Should I confront the surveillance people?
Please don’t try to confront the people performing surveillance on you; there isn’t much to be gained. They are usually within their legal rights to be surveilling you in public places and are just doing their job. In 99.9% of cases, they won’t stop the surveillance just because you approach them. Confronting them might become a negative reflection of you -- especially if you are emotional, aggravated, or aggressive during the brief exchange.
Can I call the police?
Of course you can call the police if you’re feeling uncomfortable with the private investigator’s surveillance, but truthfully they won’t do much. Typically they will tell you exactly what we’ve said in this article: that the person is a private investigator and, as long as they are in a public space, is within their rights to be watching you. There isn’t much the cops can do otherwise.
Surveillance on social media
Typically, if you are under surveillance, it will include both your physical life and your presence online. This can include, but is not limited to: your photos, videos, groups you may post on, social sales, and pages for volunteer work.
The best way to prevent this type of surveillance is simply by adjusting your privacy settings. Make sure your accounts aren’t open to the public. Most social media sites allow you to control who can follow you or see what you post.
They may do some general online surveillance. This can include broad searches for known emails and phone numbers to see what comes up; searching public registries looking for registered business; searches through court records to see if your name appears in any lawsuits.
If you’re trying to do any social selling of products or crafts online, you should always inform the insurance company that you’re doing so.
Daily Activities Form
You are more likely to be put under surveillance when your change of definition (COD) date is approaching. The insurer will be doing an assessment of your claim to see if you are qualified to work under the eligibility change from “own occupation” to “any occupation.”
If your insurer has sent you a daily activities form to fill out, chances are that they have you under surveillance already or they are planning to in the near future.
Our advice is to live your life as you normally would. Think about your full range of activities over the past year. Give examples of both good days and bad days; people run into problems when they only indicate how things are on their worst days. The insurance company compares what you say you can do with what they see you doing in their surveillance. By being honest with them and documenting what you're capable of on your good days, they won't be able to catch you in a lie.
You also must be very careful and clear with your language. We’ve had a client answer the question “How often do you leave the house?” by checking a box that said “Rarely.” The insurance company surveilling the client got her on video leaving the house 5 times over a 7 day period and used this as a basis to stop her benefits based on fraud or deception.
Even if they were 5 minor outings, in this situation it does appear that checking “Rarely” would have been a lie. This is why it’s important to be clear and honest.
If you suspect that you’re under surveillance and want to know for sure, you can request your disability claim file from your insurer and the facts of your surveillance should be in the file.
If you have questions or are seeking further advice about your situation, please don't hesitate to schedule a free consultation online or call us toll-free at 888-732-0470 to speak with our intake team.