The Sunday Tribune newspaper in Dublin has published an article/s alleging some insurance companies (remaining nameless here!) have assembled information and constructed files on personal injury claimants (aka âpersons injured in accidentsâ?) having wrongfully and illegally obtained some of the information from Government and police files.
Allegedly, police officers (Garda Siochana) or former police officers (and some civil servants) are the sources of the information. The information, it appears, is accessed in real time on the police and Government computers and files.
If this is true (legal proceedings in defamation have issued against the Sunday Tribune in one case, apparently), a number of wrongs have been committed.
The Injured Parties
These people have been injured several times, in more than one sense.
Having been injured physically they claim compensation from the persons they believe were responsible for the injury. Typically, these claims arise following road traffic accidents, for which, in Ireland, it is compulsory to have third party insurance. Uniquely, for Ireland, a favourable judgment for the Plaintiff is directly enforceable against the insurance company.
What is alleged is that the companies, or one or more of their agents, have corruptly gained access to private information, relating to the Plaintiffs, held on Government and police files. This is the second injury to the Plaintiffs.
The insured person, the defendant, will be obliged to report the accident to the insurance company with whom he/she is insured. That company will then handle the claim, using a claims department and sometimes hiring self-employed claims investigators. These investigators are sometimes represented as âprivate investigatorsâ?, but generally they interview the defendant and photograph the scene of the accident. Only some of them go further and investigate the plaintiff, secretly filming him/her to demonstrate the falsity of claimed incapacity, for instance.
This is unpleasant, but lawful.
What is alleged is that the companies, or one or more of their agents, have corruptly gained access to private information, relating to the plaintiff, held on Government and police files.
If true this would, it appears, constitute a breach of the Plaintiffâs constitutional right to privacy.
THE DEPARTMENT OF SOCIAL, COMMUNITY AND FAMILY AFFAIRS
The Department of Social Community and Family Affairs keeps a file on most people in the State. This may relate to the payment of various benefits, disability; unemployment etc. The file will also have a record of the contributions paid by or on behalf of the plaintiff. This is the main reason it can confidently be said that there is such a file on most people. The files of the Department are subject to the Official Secrets Act 1963. All information on a Departmental file or computer is âofficial informationâ?,
Section 4 of the Act of 1963 reads;
4. â(1) A person shall not communicate any official information to any other person unless he is duly authorised to do so or does so in the course of and in accordance with his duties as the holder of a public office or when it is his duty in the interest of the State to communicate it.
A breach of this restriction, for payment, is a corrupt act under Section 2 of the Prevention of Corruption (Amendment) Act 2001
To make a payment for official information is a corrupt act and an offence under the Act of 2001.
Section 2 of the Act of 1988 (as amended by the Act of 2003) requires [the Department] to only obtain or process data fairly; ensure it is accurate and up to date; keep it only for specified purposes; not disclose it or use it save for the specified purpose; ensure it is kept securely.
If the allegations are true, it would appear that these provisions have been breached by the Department.
As stated above, also on these facts the Department, vicariously is complicit in a breach of the Plaintiffâs constitutional right to privacy.
On these facts the Department, vicariously is complicit in the tort of abuse of public office.
THE GARDA SIOCHANA
The police (Garda Siochana) keep records of criminal convictions. There is good reason to think other information is also kept. The Data Protection Commissioner has revealed that the police made application to mobile phone companies on 10,000 occasions in 2006 for information on the location, and other data, of owners or users of particular mobile phones. (“Sunday Times”; 25/2/2007). In short, the mobile phone information database is, effectively, part of the police database.
The Garda Siochana and its members are also subject to the Official Secrets Act 1963 and Section 2 of the Prevention of Corruption (Amendment) Act 2001.
Any use of information as alleged by the Sunday Tribune would constitute an unlawful means conspiracy. Such a conspiracy need not have as its object an unlawful object; simply the use of unlawful means to achieve that object. In the particular cases under discussion there would also appear to have been a conspiracy pure and simple; a crime in itself.
On these facts the Garda Siochana, is, vicariously, complicit in a breach of the Plaintiffâs constitutional right to privacy.
On these facts the Garda Siochana, is, vicariously, complicit in the tort of abuse of public office.
THE INSURANCE COMPANIES
Insurance companies are, undoubtedly âdata controllersâ? in respect of the data they keep on claimants. Each insurance company is, generally, vicariously liable for the wrongful acts of its servants or agents.
There is an obligation under Section 19 of the Data Protection Act 1988, as amended, for a data controller to register with the Office of the Data Protection Commissioner. Registration involves specifying the data that will be held or processed (âholdingâ? is âprocessingâ?) A failure to register renders the holding of data illegal. Holding data for which there is no registration is illegal. An employee or agent of a data controller is subject to the same restrictions as the data controller.
On the alleged facts the insurance companies are complicit in a breach of the Plaintiffâs constitutional right to privacy.
Any use by the insurance companies of information, as alleged by the Sunday Tribune, would constitute an unlawful means conspiracy. Such a conspiracy need not have as its object an unlawful object; simply the use of unlawful means to achieve that object.
In the particular cases under discussion there would also appear to have been a conspiracy pure and simple; a crime in itself