Category Legal Affairs

Will technology be the downfall of chancers?

02 November 2015 Jonathan Faurie
Lisa Swaine, Partner at law firm Webber Wentzel

Lisa Swaine, Partner at law firm Webber Wentzel

In a world that is virtually governed by technology, big brother is always watching. There are very few instances where you can do something without it being monitored on social media; or these days, filmed and put up on these very platforms.

We are increasingly seeing this in the motor insurance industry. There have been increased instances around the world where dashcams have been installed in cars and footage of drunk drivers have been filmed and put up on the internet. The question is, does this affect your insurance policy in any way? FAnews spoke to Lisa Swaine, Partner at law firm Webber Wentzel, to give us some insight on key questions.

Disclosure still a problem

Disclosure has been a perpetual problem in the motor insurance industry for a number of years. While many would think that the existence of dashcams - where the accident is physically recorded - would resolve this issue, Swaine says that this is not the case.

“The existence of dashcams is irrelevant to disclosure. The policyholder has an obligation to report the incident to their insurer. This is also the case if the insurer has video footage of the accident,” says Swaine.

A sticky wicket

So with the issue of disclosure out of the way, now enters the issue of honesty. What happens if a policyholder reports an accident to their insurer, but tells a little white lie in order to avoid being pointed out as the party at fault? If the insurer has video footage of this incident to prove the lie, can they use it?

“If the video footage contains information that is personal to another driver, insurers can't just use it. They can tell the policyholder that they have reason to believe that the incidents leading up to the accident do not match his/her submission and they can then ask the policyholder if they want to make another submission regarding the events leading up to the accident. If the policyholder refuses or sticks by his/her original submission, then the insurer may have a right to refuse the claim. It all depends on the circumstances,” says Swaine.

This is where things get a bit technical. Before we go any further, we need to point out that the Protection of Private Information Act (Popi) has not come into full effect yet, so there is still some leeway when it comes to personal information. However, one must be careful.

There are always two parties in an accident; and the majority of the time it involves two vehicles. If you are the other party in the accident, the party who was crashed into, and you filmed it; you can’t just use your footage as leverage.

“You can send this footage to your own insurer to prove that you were not at fault. However, if you filmed the accident and the other car's licence plate is visible, consent from the offending driver should strictly be obtained before the footage can be used by your insurer. This is because the licence plate can be traced back to personal information of the driver. However, it could be argued that because the footage is of a person driving in the public space which can be seen by the public, privacy is strictly speaking, not an issue. It is difficult to guess now how Popi is going to be applied", says Swaine.

There are a number of brave individuals who like to film themselves driving under the influence and then posting it on platforms such as YouTube and Facebook in order to brag about their exploits. Swaine feels that if such individuals film themselves driving under the influence and publish the footage on social media, the information is in the public domain and privacy cannot be used as a shield.

Additional role player

Because of the crime levels in South Africa, a number of companies and private residences have CCTV footage which takes videos of the street immediately opposite their house or business. Now what if these cameras take footage of an accident?

“Again, if the footage contains information that is personal to the drivers, one must consider the circumstances before just using it. The South African Police, have wider powers to obtain evidence of offences committed and may lawfully obtain the footage. That aside, one must be cautious when using footage to potentially prove or disprove an offence or insurance claim because the footage alone is not necessarily proof of what was committed, " says Swaine.

Once Popi is introduced into the market, it will change the way in which privacy is considered. However, clients cannot use Popi as a bullet proof shield. Insurers commit to complying with Popi when dealing with information obtained. Clients have a duty to cooperate with their insurers and insurers may reject claims if they have evidence to justify doing so.

Editor’s Thoughts:
If insurers need to act in the best interests of customers, the same customers need to treat insurers fairly by acting in a responsible manner at all times. Technology will play an increased role going forward, and we could see video footage being used in the courts in the future. Nothing is impossible. Please comment below, interact with us on Twitter at @fanews_online or email me your thoughts

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