‘Insurance surveillance law is open to interpretation’

Insurance companies will be allowed to spy on individuals claiming social security payments if voters give the green light on November 25. Social Democratic parliamentarian Silvia Schenker argues the legal text was drafted in haste and is of poor quality. She recommends rejection of the law.

The European Court of Human Rights and consequently, the Federal Court, ruled that there was insufficient legal basis for the surveillance of insured individuals in either the accident insurance law or the disability law. After this, such surveillance had to be stopped.

Parliament created a new legal framework for this in haste. The speed, but also the pressure from the insurance lobby, were hugely detrimental to the quality of the proposal.

The law is very badly formulated. Instead of the necessary legal clarity, the wording leaves much open to interpretation.

Filming in private spaces

In the first instance, this applies to the ruling that is intended to define where insured individuals can be monitored.

According to the wording of the text, this is not just possible in public spaces, but also in places which are freely visible from a publicly accessible space.

For weeks, there has been a debate about whether that means recordings in private spaces are possible. A considerable number of legal experts are in agreement: The wording of this ruling doesn’t unambiguously prohibit them.

No one can say how courts will decide on this question in future. But one thing is clear: Lawmakers chose this wording deliberately. If they had wanted to limit the space where surveillance is permissible, then they would have done this.

Not impartial

What is particularly disturbing is the fact that insurers decide themselves who should be put under surveillance. Insurance companies are an interest group in disputes; they are not impartial.

The fact that they can decide alone, without independent consultation, whether an insured individual can be put under surveillance violates principles of the rule of law. Not even the police have so much autonomy.

We must recognise that surveillance is a major intrusion of privacy.

It means that someone can be systematically followed and monitored, and that image and sound recordings can be made of him or her (and of uninvolved third parties.)

Our privacy is, however, protected by the constitution and by the European Convention on Human Rights. We must very carefully evaluate the circumstances under which this protection is no longer valid. This care is in the interest of all of us.

One third unjustified

In the campaign for the referendum, we frequently hear that only those who are dishonest or have something to hide have anything to fear. This would be true if every surveillance operation exposed a fraud. But that is not the case.

In 2016, a third of all surveillance operations conducted by disability insurers were not justified. That means that in 90 cases, individuals were monitored over a long period, film material was produced, and conversations were recorded. The surveillance operations penetrated deep into their private sphere; they were spied on. And it was unjustified.

Whoever still thinks that this isn’t relevant because he or she doesn’t draw a disability pension and receives no accident insurance benefits is deceiving himself/herself. Under the new law, many kinds of social security insurers can conduct or commission surveillance autonomously: for example, insurers for unemployment and supplementary benefits, or your health insurer.

Legal basis must be watertight

Abuses must be exposed and severely punished. No one disputes that. Not even the opponents of the proposed law.

But the legal basis for potential surveillance must be watertight. There are serious doubts that the proposed legal text meets the criteria of the European Court of Human Rights. Therefore, we cannot rule out that Switzerland will once again be chastised for the same issue. This would be an indictment of our parliament.

If Parliament wants to permit the surveillance of insured individuals, it must define the limits and requirements clearly and unambiguously. That is not the case with this proposal.

The views expressed in this article are solely those of the author, and do not necessarily reflect the views of swissinfo.ch.

Translated from German by Catherine Hickley/urs