20/08/24 | Reading time: 3 minutes
Online therapy platforms are widely accessible today. They are appealing for their convenience and in enabling access to counselling from the comfort of one’s home.
An online therapy platform’s data is an important asset and revenue stream when commercialised for online marketing. Such data is critical for advertising commercialisation of healthcare data in Australia with practices like ‘re-targeting’ or ‘audience extension’.
Privacy concerns: BetterHelp
Privacy concerns recently surfaced when BetterHelp, a US-based online therapy platform operating in Australia, shared its customer data with social media platforms Facebook, Pinterest and Snapchat. It had promised its customers that it would only use or disclose such data for limited purposes.
As a result, the US Federal Trade Commission required BetterHelp to pay US$7.8 million to its customers to settle charges against it. It also banned BetterHelp from using of customer health data for advertising, including re-targeting.
This led to calls in Australia for the Information Commissioner to investigate if BetterHelp breached privacy laws.
Should Australian platforms be concerned?
BetterHelp is a cautionary tale for online platforms seeking to commercialise their user data in Australia. It provides a sense of the public mood on how such data is expected to be handled. Public pressure also plays a role in influencing regulatory action by Australian authorities.
Use of visitor and customer data in online marketing is commonplace. However, the fact that it is done by online therapy platforms was particularly concerning to Australian consumer groups because the data relates to vulnerable people using the platform for mental health support. The concern was that such data could be unethically misused to influence consumer choices.
With the spotlight on them, online platforms (including therapy platforms) will now more than ever need to play within the rules when using data for online marketing.
Murky regulatory waters
The regulatory waters on data use for online marketing are set to get murkier with the upcoming Australian privacy reforms, which affect how online therapy platforms (and generally all online platforms for that matter) collect and use their data in at least 2 ways.
Expanded definition of ‘personal information’
A staple of data collected for online marketing is user internet and device data eg email, mobile device identifiers and IP addresses. Beyond that, platforms build on such data to derive ‘profile’ information about a user for audience extension.
Online platforms have traditionally operated in the grey zone that such data is not personal information and can be used for online marketing. However, this data is now likely to be swept into the definition of ‘personal information’ and regulated by privacy rules.
‘Fair and reasonable’
Online therapy platforms also receive sensitive information about an individual’s health. In BetterHelp’s case, the data it shared involved customer answers to personal health questions.
Data about an individual’s health is regarded as sensitive health information under the Australian Privacy Act. Current rules permit online therapy platforms to use such data for online marketing if the individual has given consent, and such consent is usually obtained through terms of use for the online platform or services.
That is no longer enough under privacy reforms. Online therapy platforms will be required to ensure their collection and use of information is ‘fair and reasonable’, even if the individual and consented. This means they need to assess and be able to justify that their collection and use of user data for online marketing is ‘fair and reasonable’.
Being switched on
Online therapy platforms will need to keep their ear on the ground to be in tune with public and customer expectations on using their data for online marketing. They also need to keep an eye on privacy rule changes and adapt their operations quickly to continue extracting value from their data assets.
With the shifting regulatory environment, it remains to be seen how new concepts like ‘fair and reasonable’ use of data would be applied, though the whisper in the wind suggests that the new rules are expected to prevent a BetterHelp situation from happening in Australia again.
Associate
Ray is a corporate and commercial lawyer, who has advised clients for over a decade in corporate and commercial transactions. Prior to joining Bespoke, (Read more)
