Producing Online Content – What are the Risks?
Does producing educational resources put you at risk in jurisdictions outside of Australia?
An interesting question came up recently at a Business for Doctors event I spoke at relating to doctors generating online content and its legal implications. As you know it’s a bit of a minefield, but even if you are creating content within the AHPRA guidelines, what else do you need to be mindful of? The question is if you are creating a resource, such as a video and you put it up on YouTube, and YouTube is GLOBAL, what happens in the event someone overseas suffers a “loss” as a result of watching that video? Your intent is for the resource to only be applicable in Australia. As Medical Professionals, providing well-researched content online is a great forum to share your knowledge and expertise as well as develop and build your exposure. There are ways that you can mitigate your risk so that you can be confident that providing resources online won’t come back to bite you.
What is your legal risk if the content is viewed by people overseas?
There are two elements at play here. Let’s first cover the positive - if people overseas view your video then that’s a good thing, right? You're creating value for people outside Australia.
Where the legal risk element that is involved is if you make a recommendation that's not relevant or has different consequences in that country that you haven't potentially thought about. Or, if it exposes the viewer to a loss you may then possibly become liable (with no insurance in that jurisdiction).
This risk alone should not deter you from making and creating good quality resources for people to view. Below I have set out how to mitigate your risks.
Ways to reduce your risk:
Focus on providing good quality well-researched information that doesn’t contain any treatment or diagnosis advice.
If you're going to publish something make sure the information is good enough and well researched so that it stands on its own no matter where it is in the world it’s viewed.
As a lawyer, I am only able to practice law in Australia, and I’m not able to practice anywhere outside Australia. Similar because Australian qualified doctors are only allowed to practice in Australia. The content that I create is only relevant for Australian audiences, and one way that I limit my risk is that I provide a disclaimer that the content is general in nature and shouldn’t be relied upon.
Rather than putting a video straight onto YouTube, here at You Legal, we use Vimeo so that we have a little bit more control over who gets to see it and what comes next. For those who aren't aware Vimeo is another video platform and it's a fantastic one. It gives you the ability to determine who is going to be able to see your video if it's embedded on your website. You can also do geo and domain restrictions to control where your video can be seen.
You could also include a verbal disclaimer in your video like, “This is for informational purposes and if you have genuine medical needs or concerns please see a doctor”.
Our website terms of service also include disclaimers that people located in Australia or elsewhere shouldn’t be using online content and use it as advice.
Three key takeaways:
Ensure any content you publish is general in nature only and doesn’t provide treatment or diagnosis advice
Embed content onto your own website so that you have some control over who can view it
Ensure your website has an up to date Terms of Service and Privacy Policy.
You can watch the full YouTube clip here.
What Next?
If your Practice has a website, you will need to ensure that terms and conditions of usage for users are provided. Terms of Service set out the rules for people using your website. They include how people can use your website, what is prohibited and a disclaimer to limit your liability. A comprehensive Terms of Service will set out:
A clause that covers your website’s information and content;
A clause that addresses representations and warranties and how users should use the information on the website;
A clause that limits liability for information and material on the website
A clause that limits liability for third party links;
Provisions that cover in more detail exclusions and reduction of liability which will further protect your business;
Provision which covers in more detail advice, statements, and opinions provided by your website and reduces your liability
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