Do you believe an insurer violated your privacy during a fraud investigation? Then both the lawfulness of the investigation and the significance of its findings need to be assessed. In civil proceedings, unlawfully obtained evidence is not automatically excluded. A strong defence therefore addresses both the investigation method and the substantive conclusions.
Nederlands: Lees dit artikel in het Nederlands: Onrechtmatig onderzoek door een verzekeraar: wat gebeurt er met het bewijs?
Türkçe: Bu makaleyi Türkçe okuyun: Sigortacının hukuka aykırı soruşturması: delillere ne olur?
Written by Onur Arslan, attorney at Arslan Advocaten. Do you have questions about your own situation? Get in touch.
Which act was unlawful?
Describe specifically what happened: prolonged surveillance, access to protected data, an overly broad medical request, incorrect information given to third parties or systematic collection without sufficient grounds. The mere fact that you did not give consent does not settle every issue; consent is not the only possible legal basis for processing data.
Ask about the purpose, legal basis, necessity and alternatives. The duration and intensity of an investigation can make a difference. The nature of the data also counts. Medical information and data on criminal suspicions are subject to special safeguards.
No automatic exclusion of evidence
The Supreme Court of the Netherlands (Hoge Raad) has explained that in civil proceedings there is no general rule that the court must disregard unlawfully obtained evidence. Additional circumstances may justify a different outcome. See ECLI:NL:HR:2014:942.
That starting point does not make the investigation method unimportant. The seriousness of the infringement, the interests involved and the circumstances may be relevant. But an objection that merely seeks the automatic removal of every piece of incriminating information may miss the point.
Challenge the reliability as well
An incomplete recording, a wrongly dated photograph or leading questions can limit the evidential value. Ask for the original material and the selection made for the report. Have the investigator demonstrate how they moved from observation to conclusion.
In personal injury cases, the key question is whether an activity actually says anything about medical limitations. A technical or digital data point does not in itself prove intent. A response on the substance may therefore also be needed if the privacy objection turns out to be justified.
Which remedies are available?
Depending on the breach, rectification, restriction of processing, erasure, a complaint or compensation may be explored. A complaint to the data protection supervisory authority is not an automatic decision on the insurance payout. A compensation claim requires its own substantiation of damage and a causal link.
If a registration in the External Reference Register (EVR), the insurers’ shared fraud register, is based on the investigation, assess the registration conditions, the reliability of the established facts and proportionality separately. The outcome of one dispute does not necessarily determine all other measures.
Frequently asked questions
Does the fraud allegation fall away if privacy rules were breached?
Not automatically. The alleged facts and the use of the evidence must be assessed separately.
Can I claim compensation?
This can be explored if there is a relevant breach and demonstrable damage. Mere dissatisfaction with the investigation is not enough for every head of damage.
Should I still respond to the report?
A response on the substance is usually wise alongside the objection to the method. That way, your defence does not depend on a single legal point.
Which documents are needed?
The instructions and reports, relevant images or correspondence, the decision letter and evidence of the consequences of the investigation.
Read also about personal investigation, requesting reports and damage caused by registration.
Have both the investigation method and the evidence used assessed from a legal perspective.
This page provides general information and is not legal advice about your own situation. No rights can be derived from its content.
