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An insurance company asked a firm of licensed private investigators to investigate an insurance claim. The private investigator followed the claimant and took photographs of her. These were subsequently given to the insurance company. She made a complaint against the insurance company to my office.

I first had to consider whether the private investigator had acted as an agent for the insurance company in taking the photographs of the claimant. Section 126(2) of the Privacy Act provides:

Anything done or omitted by a person as the agent of another person shall, for the purposes of this Act, be treated as done or omitted by that other person as well as by the first-mentioned person, unless it is done or omitted without that other person's express or implied authority, precedent or subsequent.

I was satisfied that the private investigator had acted on the insurance company's behalf. As the insurance company had asked the private investigator to keep the investigation confidential, it would have been aware that the photographs were taken without the claimant's knowledge. The photographs were accepted and used by the insurance company. For these reasons, I formed the opinion that the private investigator acted as the insurance company's agent in taking the photographs. Section 126(2) required me to treat the private investigator's actions as done by the insurance company.

Information privacy principle 4 provides that personal information shall not be collected by an agency by unlawful means. Section 52 of the Private Investigators and Security Guards Act 1975 makes it an offence for any person, in the course of or in connection with the business of a private investigator, to take photographs of another person without that person's prior consent in writing. In this case, the private investigator took photographs to corroborate his observations. The photographs were not taken with the claimant's knowledge or with her consent in writing. I considered that the private investigator had breached s 52 by taking photographs in this way. The means of collection appeared to be unlawful and I formed the opinion that principle 4 had been breached.

Section 66 provides that an action is an interference with a person's privacy if it breaches an information privacy principle and results, or may result, in some adverse effect, such as significant injury to the person's feelings. The claimant provided statements indicating that she had suffered considerable distress as a result of the insurance company's actions. I accepted that the collection had had an adverse effect on her in terms of s 66 of the Privacy Act and formed the opinion that the insurance company had caused an interference with her privacy.

The insurance company declined to enter into settlement negotiations. As the action took place before the full remedies became available under the Act I was unable to take the matter any further.

The claimant also lodged a complaint against the firm of private investigators, which was settled with the payment of some compensation to the claimant.

December 1997

Indexing terms: Collecting personal information - Insurance company - Collection by unlawful means - Photographs taken by agents of insurance company - Private Investigators and Security Guards Act 1975, s 52 - Privacy Act 1993, ss 66(1)(b) and 126(2) - Information privacy principle 4