Investigators face a number of issues where ethical judgment is required. As an agent, an investigator holds the authority to do particular things on behalf of the customer. This authority may at times be express. For instance, a contract that is written may specify the things that the investigator might be required to do, how they are going to be performed and even the time that they will be performed. Alternatively, when there is absence of written authority, or when the authority that is express does not cover all aspects of the materials that the investigator is needed to do, the authority is implied. Implied authority covers things that are ordinarily or necessarily incidental towards the express authority, or ones that are customary to the investigator’s business.
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For instance, the written contract in some ways may allow the investigator to perform investigations for the client. This means that the investigator has an authority to perform actions or duties that are ordinarily incidental or necessary to the running of investigations, e.g. making enquiries. Again, it may also means that the investigator has an authority to perform various investigation activities inclusive of surveillance, if it has been customarily performed by investigators in their way of carrying out their investigations. A good example is, when the investigator gets an authority of enquiring a certain client about his/her competence in paying an overdue loan he/she is supposed to pay. Without further precise instructions the investigator does not have an authority to collect the money from the clients as his only duty is to enquire about their competence to pay back. If the investigator breaks the rule and goes beyond the instructions given by the authority, e.g. by threatening the debtor with words about what will happen if he/she fails to pay, the debtor may bring an action against him on which he will be liable.
The investigator could also be having what may be termed as ‘ostensible authority’, meaning the indication of authority when doing something in the face of others, irrespective of what they are actually instructed by the client to do. This authority is however, important if the investigator acts in a manner resulting into an action which is against him by the public. The reason for this is: the client may be also held responsible for the actions of the investigator lying within the level of apparent authority. Example: an officer in charge of security may be required to ascertain the identification of those entering into his boss’s property, and to inform the boss if all entering are in the list of entrants. If he tries to stop a person, which he is not supposed to do, and in the process injures him, resulting in an action of assaulting him, the boss may be held responsible. This is, if the one attempting to gain entrance believes that that officer holds the authority of physically resisting entry of those whose identification are not on the list of entrants.
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Common laws in trespass shelters some members of public from surveillance of their undertakings while on private property. Laws of nuisance will also issue a solution if the researcher is guilty of a ‘monstrous violation of privacy’ by persistent surveillance of an individual’s house. In short the surveillance has to cause a considerable and unrealistic interference with the individual’s right to use and enjoyment of land. Whether the interference is unrealistic and considerable is a querry of fact to be evaluated referring to all the situations of individual case, among them being the nature of the situation of the land, character, time span and hour of the interference and the result of the interference. The set standard is examined by reference to normal use by ordinallypeople (Olson, 1967). A Canadian case of Davis v. McArthuris an illustration of a circumstance thatmay yield an act of trespass resulting from surveillance. The case was determined on the basis of violation of privacy, which is an action unavailable in Australia. Although, the general principles might apply to favor an action in trespass. In such situation the investigator was acting on behalf of the wife. Surveillance of thehusband proceeded for over eight months, the fact that it was said to be discreet and sporadicnot withstanding. The investigator carried out surveillance in the street and withoutentering private estates. The husband speculated that he was under surveillance, and his speculations were proved when he realized a tracking device glued to his automobile. The court held that the knowledge that one was being tracked was not enough for aviolation of privacy. Though, any surveillance has to be taken in context. Here a violationof privacy was proved because surveillance was in progressof the husband at exactly the same period by another party. The court found that joint surveillance by various parties was a violation of privacy (Orend, 2000). The investigator was required to compensate the husband. Surveillance also results to ethical contexts and the possible occurrence of misleading and deceptive issues when the investigators decisively create a circumstance in which a complainantis likely to act in a predetermined manner, in contrast to passive surveillance.
Investigations of individual injury claimants are prone to this type of character. Assume that a claimant holds that as an effect of the injury he can bend over no longer and cannot pick up heavy loads. The defendant solicitor believes that the claimant’s injury is not as serious as he says. The private investigator places a huge heavy load behind the claimant’s automobile, waits with a video camera to catch the claimant if he tries to dislocate the load. This kind of ‘fixture’ is not strictly prohibited by law and there are no real conditions against such conduct.
Some redress is not unavailable to injured persons who have been surveilled or victims to simulation tests. If an individual under surveillance want to bring a case against an investigator because of nuisance, they need not prove that they have been subjects to any particular injury, but when such damage is not present, only nominal compensation will get awarded. However, in a case where the investigator has acted in a morally acceptable way in carrying out the surveillance, the court may issue punitive or exemplary injury (Sahakian, 1993). A private investigator employing someone to carry out surveillance on his/her behalf will be held accountable for any injuries awarded to the complainant as an effect of a nuisance brought about by that person in the course of conducting their responsibilities.
Privacy and protection of reputation
The person investigating privately could be important to the action of defamed in respect of being the one passing it on or being the origin of such defamatory statement. Defamatory statement can be made express or by innuendo. The little task of inquiring can cause indications of faulty conduct. For instance, by asking one’s employer of that person’s capability, of involving himself with crime. In Canada’s ‘Review of Private Investigation Industry’, The Department of Consumer Affairs, in New South Wales, 1993.
Consider the case of Davis v. McArthur no. 24 I.C.B.C. case Somosh73Some investigator was sought to establish the income of the defendants and their assets from where to draw if they were capable of paying for a claim. This investigator called the employer of the male defendant asking about his employment, wages, morals, traits, emotional responses and his drinking character. This occurred to be an intrusion into private affairs. Seemingly, in Australia, such activities may be found to be an action in the common law as far as harassment or defamation provisions that have been mentioned above are concerned.
Let’s take an example of an investigator who has been hired by an individual who is suspecting that her son is taking alcohol or drugs. The investigator calls the son’s employer with an implication that the son is an alcoholic or drug user and inquires if the son has ever been to work in a state suggesting his drinking habit. In response to that call, consequently, the employer sucks the son from the former’s organization, believing he is an alcoholic. In such case the son is entitled to make a claim of compensation from this investigator for defaming him to his employer. Regardless of whether, this allegation is false or true.
The investigators may be hold legally responsible in tort for causing the nervous shock through the activities they normally conduct in their investigations. This can particularly come about if such activities cause emotional distress that is not lawfully justifiable to the person investigated. For instance, private investigators may be found liable if they cause a particular person emotional distress through false accusations probably trying to make their investigations a success. All in all, one may suffer an emotional distress or a nervous shock from extreme surveillance activities. A good example is when an investigator enquires a person about his/her financial status wanting to know if he/she has assets or enough money to pay a certain debt. What an investigator normally does is going to that person’s house, fakes himself as a police officer and claims that the person is under surveillance investigation for a certain fraud. While this is lawfully wrong, investigators normally do it in attempt to get the information about financial records of a particularly person. By this, the investigator should be held responsible of the distress that person goes through, and should compensate him/her for false allegations. Again, the investigator should be held accountable for the criminal offence, that of claiming himself to be a police officer.
Breach of confidence
Where an investigator receives confidential information, or knows that it was originally supplied in a situation of confidence, one does not have the permission to pass the information on in the absence of deserving or just cause .A just cause or excuse may be that the revealing of the information is essential to ensure safety of the public . An example is when an investigator gets to know that a variety of swing models have an inherent defect that is harmful to children. It is important to pass on that information to the client of the investigator is a sufficient cause however, the excuse given will rely on the type of information and the source of the client’s interest in the Information (Miller, 2009). For example: a private investigator has recently worked for a certain company that deals with insurance. She gets to know that the company normally settle claims for less than 6000 dollars and does not inquire detailed proof of the loss, but this is policy is kept private by the company. The investigator is retained by a firm that is claiming compensation for a client of 5500dollars from the previous company. The investigator is asked to come up a detailed proof of the loss. In this situation the investigator is not entitled to share the information with the client about the insurance company’s policy.
All the above issues have warrants the investigators in Australia and specifically the ones who seeks to become professions.
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