Investigation by a private detective and privacy

It often happens that an insurer asks a private detective to carry out investigations relating to an insured or a beneficiary who claims compensation for personal injuries.

French law provides strict conditions to carry out such investigations as they can affect the right to privacy of the person under investigation.

These conditions were confirmed in a recent matter judged by the Cour de Cassation (Cass. Civ. 1, 22 Sept. 2016, n°15-24015).

In that case, a teenager was harmed in a traffic accident: he sustained fractures, bruises and a moderate head injury. However, the medical expert appointed by the court to examine the claimant noted some discrepancies between the complaints of the victim and his medical results – that appeared as normal. The insurer who was due to make an offer decided to obtain first an investigation report from a private detective to find out whether the claimant was autonomous in his daily life or not.

The Cour de Cassation ruled that:

• An investigation needs to be legitimate with regards to the collective interests of insured.

In other words, an insurer will be entitled to obtain an investigation report from a private detective only if such a report would assist him in obtaining the proof of the lack of entitlement of the claimant.

• The investigation has to be necessary and proportionate.

The investigation should not be carried out in such a way that the right to privacy of the person is undermined.

In the present case, the Court considered that if survey of the claimant in public places can be admitted, this is not the case when he was at home. The claimant was awarded €1 as damages for breach of privacy right.

However, the main risk here for the insurer is to have the investigation report set aside when the lower courts will rule on claimant’s damages for personal injury…