Johannesburg – Using your phone for social media while driving could be considered reckless behaviour by an insurer, giving the insurer the right to decline a claim in the event of an accident, said a legal expert.
Maria Philippides, director of insurance litigation at Norton Rose Fulbright South Africa, explained the legal implications as well as consequences for insurance cover where reckless behaviour is related to the use of social media.
She referred to a recent report in the UK where a woman was jailed for using Facebook when she caused a car accident. Philippides explained to Fin24 how a case like this could possibly be handled locally.
In South Africa, the use of a cell-phone while driving is prohibited by the road traffic regulation. This is not just limited to talking on one’s phone, but also holding a phone or other communicating devices when driving, explained Philippides.
If caught by authorities when doing these activities, one could be liable to pay a fine. In the instance that this behaviour leads to something worse like an accident causing death, one can be charged for culpable homicide, she said. “If convicted, it would carry a jail sentence.”
Insurance policies are designed to cover the insured for their negligent behaviour. But there are policy provisions which explain when insurers do not pay out claims. This is either when the claims arise from a criminal offence, such as using your phone when driving, explained Philippides.
The other instance when a claim is not paid out is if the policyholder does not act with “due care” to avoid an accident or loss or damage, she added. In this case the actions go beyond negligence and are viewed as being reckless, she explained.
A court would test for recklessness in terms of the person being aware of the risk that would result of their conduct, and still continuing with the action regardless. In that case the insurer will be able to reject the claim, she said.
“If you are operating your cell-phone, which you know is illegal or an offence … and your attention is not on the traffic and the road ahead of you, [with your head] looking down. That can be termed as reckless.”
Drivers have an imposed duty by the national road traffic act to be engaged with driving, explained Philippides. If you are engaged in an activity “so removed from your duty to drive properly”, no matter what it is, including applying make-up in traffic, it is reckless, she emphasised.
When asked about how operating wearable devices, such as smart-watches, while driving may be viewed by insurers, Philippides acknowledged that the law was struggling to keep up with the pace of changing technology.
“Law can’t keep up with every single device that gets created… There is no specific prohibition on a person using a smart-watch,” she said.
However even though there is no prohibition in law for using a device, insurers can reject a claim if the use of the device can be classified as reckless, she explained.
Philippides pointed out the innovation of smart windscreens, where a navigation panel comes up on the windscreen when driving. Even if this innovation is legal, it is possible that insurers may view the use of this navigation while driving as reckless.
Proving use of social media
If a policyholder does not accept that their claim was declined, the matter can reach the courts. It is up to the insurer to make the allegation and prove that the policyholder was using their device when driving. Philippides explained that the insurer would have to get evidence of the use of the device. This could be witness statements, the police report and possibly cell-phone records to prove the use of the device coincided with the time the accident was made.
The records could show when data was used, or when phone calls were made. Activity logs from social media, with permission from the policyholder in the case that he or she has privacy settings, can also be used to prove use of a device, she added.
Failure to submit this information can lead to an adverse inference by the courts, indicating that the insured possibly has something to hide.
Something as simple as liking a page at a time that coincides with the timeframe of an accident could implicate the policyholder, said Philippides. “It shows attention was diverted from driving.”
“The ordinary person on the street does not realize that what they are doing while operating on social media is accessible to anyone. If it is publicly available, anyone can use it, the right to privacy is basically waived.”