When J.A. Barnes, a social anthropologist, studied a Norwegian fishing village and coined the term “social network” in the 1950s, few could have imagined that the advent of personal computers in the 1970s and the Internet in the 1980s would spawn the social networking services that today connect nearly half of the world’s population.
The web-based and mobile technologies and applications now comprising social media power much of today’s commercial and social communications, providing individuals and businesses with limitless opportunities to generate and publish electronic content: content that sometimes conflicts with policy application representations or the reported facts of insurance claims.
Once established, a user’s profile serves as the fuel for public and site-specific search engines, enabling others to find, observe, connect and share. And share they do. Social networks thrive on users pushing detail-rich text and image content previously considered to be private in an increasingly public direction. The what, when, where, how, and why of users’ personal and professional lives become the stuff of wall postings, status updates, check-ins, and tweets.
Debates as to why people broadcast so much personal and private information aside, social media content provides insurers of all types with opportunities to mine text, images and metadata that can be useful in the investigation and evaluation of both first- and third-party insurance claims. Insurers must be careful, however, to make sure that any gold they mine from social network and media content is not fools’ gold for, as Abraham Lincoln is quoted on the Internet to have once said, “The problem with quotes on the Internet is that you never know if they’re real.”
Finding Content Responsibly
There are essentially only two ways of finding and securing social media content that may be relevant to a first- or third-party claim: with the insured’s or claimant’s knowledge, or without it. Permission to access public or unprotected content is presumed. After all, tweets from an unprotected Twitter account are the functional equivalent of texting to the Internet and theoretically remain searchable and findable for as long as the Internet remains on.
Thirteen other states, however, expressly permit pretext interviews to obtain information in connection with an insurance transaction where there is a reasonable basis for suspecting criminal activity, fraud, material misrepresentation, or material nondisclosure in connection with an insurance claim. It may only be a matter of time before an insurer that uses pretextual methods to secure protected or non-public social media content is challenged in court for doing so. The potential consequences of obtaining such content by pretextual means potentially range from bad press to bad faith or extracontractual liability. Insureds and claimants have already argued that their protected social networking and media content is private, even though it is openly shared with hundreds or even thousands of their Facebook and MySpace “friends.”
Once a claim becomes litigated, however, accessing protected or non-public social media content may be possible with the user’s knowledge, but without his or her permission. There is a growing line of trial and appellate court case law in the U.S. upholding an insurer’s or insured’s right to discover the protected content of a plaintiff’s or claimant’s social networking account, provided the discovery demand for such content is both: narrowly tailored to produce relevant information and reasonably calculated to lead to the discovery of admissible evidence. Supporting such a discovery demand, however, may require the insurer already to have secured some content that contradicts the plaintiff’s or claimant’s claim, something that is difficult or even impossible to do without either utilizing pretextual means or gaining such content from existing “friends” of the plaintiff or claimant.
Insurers that conduct social media research should also consider using IP-address anonymizing software, browsers, or websites for visiting sites such as business websites and blogs on which users can track visits. Knowing which social networks allow users to “see” who’s visiting their profiles or pages can also be valuable. Always use protection when conducting social media research.
In a now famous cartoon published in The New Yorker in 1993, Peter Steiner captioned his drawing of a canine sitting at a desktop computer speaking to a canine on the floor below, “On the Internet, nobody knows you’re a dog.” That cartoon best sums up the reason insurers must verify whatever social media content they may be able to harvest as potentially relevant from the Internet. Unless and until the purported source of the text or images is verified, it will not be considered reliable enough to be admitted into evidence if the claim under investigation were to be denied and litigated and, therefore, should not form the basis of a decision as respects that claim.