Social Media and Digital Law ..... and more (a brief summary)

A major part of my work is to help advertisers promote products and services are in the strictly regulated area of health care. Inspired by the NSW Government’s Small Business month, I took the opportunity to participate in a seminar focusing on the laws that apply to Social Media. Advertising in this space is growing at a remarkable pace, and yet the legalities underpinning this technique are not fully recognised by many. Mistakes made in advertising can be expensive – time, money and importantly reputational damage can ruin businesses small and large.

Interestingly enough, the opening topic was “What is social media?”. Plenty of responses indicated an awareness of the usual, very interactive platforms – Facebook, Instagram, YouTube etc, but in fact social media includes all forms of electronic communication.

If you break the word down to ‘social’ – interacting with other people by sharing and receiving information, and ‘media’ – the communication instrument, we end up with something like “web-based communication tools that enable people to interact with each other by both sharing and consuming information”. Do you share information on your company website? Is there a blog or news section? Perhaps video content is included, or links to external accounts like Twitter? It is well worth considering here whether the business website falls under the social media umbrella.  

Health care promotion is particularly complex. Whether advertising a small business of one individual offering a professional service or a mega-clinic with all types of health providers, the regulatory framework remains the same. Regardless of the product or service advertised Australian Consumer Law applies and when it comes to health, there are a few extras – the AHPRA National Law is applicable to health service providers, and where medicines or complementary health products are featured in advertising the Therapeutic Goods Act, Regulations and Advertising Code also apply.

Medical and health advertising on social media has as much potential and value as any. The key considerations to managing this type of advertising are to determine whether you have control of the content and whether you can protect and manage the platform.  If either answer is no, decide whether you want to keep utilising this technique. From a legal perspective, the options are simple - either delete the webpage/ business page/ handle/ channel or allocate adequate resources to ensure your responsibilities as the owner and publisher are fulfilled.

Are you misrepresenting your business or product because your social media page isn’t being appropriately protected or managed?

Another topic that is particularly interesting to health care providers is around privacy and data storage. Quality, engaging marketing is developed following data collection and analysis. Scenarios outlining data breaches were presented, and we discussed how there should be managed in light of the Mandatory Data Breach notification laws recently passed by the Australian parliament, that came into effect from February 2018. All Australian organisations who are regulated by the Privacy Act may be liable for large fines for failing to comply with the new rules. And of note, a data breach isn’t always a hack. Breaches can also include the accidental loss of documents or data, or accidental or improper disclosure of information. This had me thinking about some of the opposition we face in relation to the MHR – imagine your client’s disappointment and indignation should the pharmacy be entirely responsible.

Other topics covered in detail included dealing with social media complaints, social media defamation and discrimination scenarios, the importance of trademarking your assets, customer competitions, subscriptions to business newsletters and even Emoji law. Yes, there is such a thing!

It was an absolute pleasure to have been involved, with my favourite quote of the day being that it has been proven people are getting dumber. As a scientist, I am a tad sceptical about the level of supporting evidence but I’ve let this one slide! If there any topics sound interesting to you, please don’t hesitate to reach out to me for a chat.

E-MAS offers concept advice and claims assessment, guiding you through the complexities of health care advertising, helping you create honest and compliant promotions.