Newsletter: New Act On Private Investigation

Dear reader,

On 6 December 2024, a new act regulating private investigations was published in the Belgian State Gazette. The purpose of this new act is to thoroughly revise and modernise the existing legal framework on private investigations. This newsletter outlines some of the changes introduced by the act that are relevant for employers carrying out private investigations.

Happy reading!

1 Scope of application

With the new act regulating private investigation (hereinafter, the "Private Investigation Act"), the legislator's ambition is to provide a comprehensive framework for private investigation activities. Private investigation was previously regulated by the Act of 19 July 1991 on the profession of private detective. This act was already more than 30 years old and consequently did not take into account evolutions in privacy and technology.

In addition, nowadays the so-called "all-round detective" no longer exists. Since today's private investigators are rather experts in specific professional fields, the legislator has opted to provide for a profile-neutral legislation.

The new act is not only important for all those conducting private investigation activities; employers may also have various reasons for wanting to use a private investigator or to launch an investigation themselves. Consider the following examples:

• Internal investigations into fraud by an employee;
• Investigations into unfair competition by a former employee;
• Detecting unauthorised recruitment of staff by a competing company;
• Investigating sick leave fraud;
• Gathering additional evidence in case of dismissal for serious cause.

An important novelty of the new act is that investigations within organisations that were excluded in the previous act are now included in its scope of application.

1.1 Personal scope of application

The Private Investigation Act firstly clarifies a number of roles.

A principal is a natural or legal person who commissions private investigations.

A contractor is the natural person who accepts an assignment on behalf of a company or an internal private investigation department.

The "contractors" are:

• companies carrying out private investigation activities for third parties; and
• internal services.

An internal service for private investigation is a service that structurally carries out investigation assignments originating from a company or a group of companies. The internal service may conduct investigations concerning persons from inside (e.g., employees of a company) or outside (e.g., insured persons by an internal service of an insurance company) the organisation.

The preparatory works hereby stipulate that it is sufficient to speak of an internal service if these activities are included in the task allocation of at least one employee. Furthermore, it clarifies that internal services also can act at the level of a group of companies.

This division of roles has implications for the material scope of application and applicable obligations which are further clarified.

1.2 Material scope of application

The Private Investigation Act provides for a broad material scope of application. More specifically, it is required that the following cumulative conditions are met:

• A natural person, the private investigator, carries out the activity;
• The activity is carried out on behalf of a principal;
• The activity includes the collection of intelligence obtained by processing information on natural or legal persons or concerning the facts committed by them;
• The purpose of these activities is to provide the information collected to the principal so that it can be used in an actual or potential conflict to safeguard the principal's interests, or to trace missing persons or lost or stolen property.

An employer falls within the scope of the act when it uses specialised external investigators, as well as when an employer uses its own internal private investigation service.

An important novelty of the act is that it becomes applicable even when an employer does not have its own internal department, but wants to conduct occasional investigations of its own employees, for instance in the context of a dismissal for serious cause.

The act does not consider as activities of private investigation:

• the professional activities of notaries, lawyers, bailiffs, journalists, company auditors and statutory auditors;
• the activities of an expert appointed by a judicial authority;
• the professions where the sole activity of gathering information is conducted exclusively with the individual concerned (e.g., investigators, car experts);
• the activities of public service officials and agents;
• making publicly accessible administrative or financial information about individuals and the resulting credit analyses available to third parties;
• the activity of claims settlement in an insurance company (e.g., technical experts);
• the activity of an auditor without gathering information about individuals to clarify undesirable facts for the principal;
• the regulated financial activities subject to specific financial supervision;
• the activities and professions specifically aimed at identifying, analysing, and handling cybersecurity incidents;
• the activities carried out on behalf of the principal to fulfil legal obligations or assignments that do not aim at private investigation as their primary objective, but are merely a consequence of these obligations and assignments (e.g., activities of a prevention advisor in the framework of legislation on psychosocial risks and whistleblowing officer). However, the use of results that exceed these legal obligations is considered private investigation.

2 Conditions for conducting a private investigation

As a result of the new legislation, prior to a private investigation, there are a number of conditions that must be met. These conditions relate to the various actors in a private investigation, including:

• The principal (employer);
• The contractor;
• Private investigator, assignment holder and other persons.

2.1 Principal (employer)

An employer may only conduct a private investigation into one of its employees if the permission and conditions for doing so are explicitly and transparently provided for in a so-called 'policy'. The Private Investigation Act does not specifically stipulate in what form this must be provided.

The preparatory works merely state that employees must be informed in advance that private investigation activities may be carried out in the workplace and that, for example, this may be provided for in a collective labour agreement, work regulations or a works council decision. However, in the absence of specification in the Act itself, it seems rather advisable to include the modalities for conducting a private investigation in a policy.

Employers have a period of two years from the effective date of this new act to comply with this obligation.

2.2 Contractor

Contractors must meet the following conditions:

• Obtain a license from the Federal Public Service (FPS) Home Affairs. The license is only granted to contractors who comply with all the provisions of this new act and the minimum licensing conditions and codes of conduct still to be determined in a separate Royal Decree (RD). The act itself already specifies a number of licensing conditions, including:
• • The company must be established in accordance with the provisions of Belgian law or the legislation of a Member State of the European Economic Area;
  • The company must meet its obligations under social and tax legislation;
  • A company in the form of a legal entity must not have been convicted of a correctional or criminal offence (or a similar offence abroad);
  • Appoint a Data Protection Officer (DPO);
  • The companies must not have appointed directors, managers, agents, persons authorised to bind the company, or persons exercising control over the company who are prohibited from exercising such functions or who have been held liable for the obligations or debts of a bankrupt company in the past five years.
  The Private Investigation Act includes several transitional provisions. Contractors may continue their activities, provided that they comply with the other provisions of this law and its implementing decrees, until a decision is made regarding their permit application, provided that they have submitted an admissible application within six months of the new law's effective date.
• Indicate the license they hold on all deeds, invoices, announcements, notices, letters, orders, websites, and other documents.
• Conduct only private investigation activities (except for security advice) for companies engaged in private investigation.
• Persons who have actual leadership over the contractor or sit on the board of directors of a company, or otherwise control the contractor, must meet several personal conditions (see table under 2.3).

Unlike the old act, the contractor is now required to verify whether the principal has a legitimate interest. An illegitimate interest exists if the subject or purpose of the assignment is illegal, such as stalking a specific person or falsely accusing someone. The legitimate interests must also be explicitly described in the investigation assignment document.

2.3 Private researchers, assignment holders and other persons

Private researchers, assignment holders and other natural persons must meet a number of personrelated conditions:

When facts or actions are identified that may constitute a counter-indication to the desired profile, an investigation into the security condition (condition 8 in the table) may be conducted at the initiative of the FPS Home Affairs.

The person who is the subject of an investigation into the security conditions must have given his/her consent, in advance and once. If the person refuses to give his/her consent, he/she shall be deemed not to comply with the security conditions.

2.4 Members of a staff department

Members of a staff department who carry out private investigation activities on behalf of their own employer within the framework of an incident investigation affecting their own employer's employees are excluded from the obligations relating to the license and identification card.

They can therefore carry out investigations without being required to have an identification card or be part of a licensed department or company.

However, it is unclear what specifically is meant by a so-called 'incident investigation' as it is nowhere defined. Among the possible examples of incident investigations mentioned in the preparatory works are: the analysis of camera footage, the retrieval and examination of access control data, the reading of electric locks or badge readers, questioning colleagues, etc.

It is nevertheless important to stress that all other conditions relating to the conduct of a private investigation must be followed. Specifically, this includes adherence to the conditions relating to the methods of investigation, such as the interview, for example (see 3. below).

Thus, although these members of the staff department are excluded from the obligations regarding the license and identification card, the act otherwise applies to them.

3 How should a private investigation be conducted?

3.1 Prohibited acts

In principle, private investigators have no more power during the performance of their work than ordinary citizens. Since the private investigator systematically interferes in the private lives of those involved, the legislator has specifically regulated some common investigative measures. In particular, the following prohibitions, among others, are imposed:

• In principle, a private investigator may not perform acts or employ means, methods, procedures or coercive measures regulated for police forces and security institutions. This rule is prescribed under penalty of nullity.
• In principle, entering a place not open to the public is not allowed unless written permission has been obtained from the manager of that place. The legislator states that this permission can be obtained, for example, by including a clause in a fire policy allowing the private investigator to enter the fire-affected premises.
• Moreover, observations in the home, other private places and places where persons have a legitimate expectation that their privacy is protected are strictly prohibited. The legislator gives the following examples: fitting rooms, hotel rooms, bathing booths, relaxation facilities, toilet rooms, hall of a private party and a school or factory premises. In addition, observations are also prohibited in places that, by their nature, can provide privacy-sensitive information about the person concerned, e.g., the entrance to a union hall to determine who is participating in a union meeting.
• During an interview, it is not permissible to create the impression in any way that the interviewee is not free to answer. During the interview, however, the private investigator may confront the questioned person with evidence.
• There is a general prohibition on using provocative techniques and ruses. Thus, the private investigator may not pretend to be a practitioner of another profession, even implicitly.
• In principle, the private investigator should not consult personal data that are not contained in publicly accessible files.
• Finally, under penalty of nullity, it is prohibited to use information on conviction documents in private investigation that were obtained by a crime or unlawfully and where the private investigator should have known.

3.2 Transparency obligations and consent

Many of the research methods can only take place after the person who is the subject of the act has given his/her prior consent and received specific information. The law indicates for each research method whether the consent and information requirement applies and how it should be completed.

Thus, an interview, as well as a confrontation or reconstruction of fact, can in principle only take place with the prior consent of the person concerned.

Specifically with regard to conducting interviews, the law provides for an extensive information obligation. For instance, the interviewee must be explicitly informed that he/she is not obliged to answer the questions. Moreover, when an interview is recorded, the interviewee has the right to receive a free copy of that recording.

Both the consent and the information to be provided must be GDPR-compliant (see under 4.).

3.3 Research assignment document on assignment register and research files

Before the research may start, the assignment holder and principal must prepare and sign a written research assignment document. Each of the parties must receive a copy of this. This must compulsorily include a lot of information, in particular the precise description of the assignment and the legitimate purposes for which the principal wishes to use the results.

This is not mandatory when the principal is the private investigator's employer. However, the private researcher must then keep a register of assignments.

Private investigators must create an investigation file from the signing of the research contract document. This will include all documents and a chronological record of all actions taken.

This investigation file can be consulted by the controlling public authorities to check whether the law has been respected.

No later than one month after the last investigative operation, the assignment holder shall submit a written investigation report to the principal. If this constitutes the last report, this report must bear the mention of 'Final Report'. The filing of the final report triggers the deadlines mentioned in 4.6 below

3.4 Secrecy and conflict of interest

The confidentiality of all personal data obtained in the context of private research must be guaranteed, and these personal data may only be used for the performance of the research assignment. Under penalty of nullity, the private investigator is prohibited from using the information obtained from one investigation file in another investigation file.

The private investigator may only make available to the client the information related to the assignment as defined in the research assignment document.

Footnotes

1 An RD may determine additional incompatibilities.

2 An RD will determine the model, modalities of use and procedure for application, grant, renewal, refusal, validity period, withdrawal and return of identification cards.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.