ME_98936265_1 (W2003x)Social Media in Healthcare: How will it impact Obstetric Practice?1. What is social media?Social med...
2ME_98936265_1 (W2003x)(a) employment – the manner in which use of social media intersects with theemployment relationship...
3ME_98936265_1 (W2003x)(A) Be careful you are not using the information gathered for adiscriminatory reason.(B) If you con...
4ME_98936265_1 (W2003x)(i) is likely to cause serious damage to relationship between employer andemployee;(ii) damages emp...
5ME_98936265_1 (W2003x)(clients as friends? what are the privacy settings?). Need to reiterate to employees theydon’t have...
6ME_98936265_1 (W2003x)......................................................................................................
7ME_98936265_1 (W2003x)7. Practical Tips(a) Social networking/media policy(i) Where employers are asking employees to use ...
8ME_98936265_1 (W2003x)(i) Update to include reference to an obligation not to bring self or employerinto disrepute.(ii) I...
9ME_98936265_1 (W2003x)(ii) Where patients have sent friend requests to obstetric practitioners there isthe potential for ...
10ME_98936265_1 (W2003x)(ii) you need to make sure that the individuals identity cannot be ascertainedthrough the totality...
11ME_98936265_1 (W2003x)(ii) also unique to the health care sector are the advertising guidelines under theNational Law an...
12ME_98936265_1 (W2003x)(d) If you have a social media site, ensure a reasonably regular review of its contentand remove a...
13ME_98936265_1 (W2003x)(iii) causes people to shun or avoid the person; or(iv) injures the persons professional reputatio...
14ME_98936265_1 (W2003x)15. Risk of worse publicity(a) The other and potentially more important risk in taking any steps i...
15ME_98936265_1 (W2003x)(i) policies, education and training(ii) regular reviews of relevant social media sites
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Social Media in Healthcare: How will it impact Obstetric Practice?

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Jennifer Cowen, Senior Associate, from Minter Ellison Lawyers has presented at the Obstetric Malpractice Conference. If you would like more information about the conference, please visit the website: http://bit.ly/10xh1iO

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Social Media in Healthcare: How will it impact Obstetric Practice?

  1. 1. ME_98936265_1 (W2003x)Social Media in Healthcare: How will it impact Obstetric Practice?1. What is social media?Social media refers to a whole range of on-line tools where the user can create the contentand link with other people who view (and comment on) their content.There are hundreds of social media services around the world and their reach andpopularity are growing constantly. The Big 5 (Blogger, Facebook, Twitter, LinkedIn,YouTube) account for most usage.(a) Blogs– A way to express oneself – to have an opinion and display yourknowledge. The two main tools are Blogger and WordPress. Generally,everything that is blogged is public.(b) Facebook – More than 750 million active users. Most people use Facebook forsocial interaction – connecting to friends, sharing photos and events, askingquestions and entertainment. People can also interact with brands on their FanPages. There is an ability to make certain content private or limit who can see theinformation posted to your page.(c) Twitter – A social networking and microblogging site used as a way to introduceideas among social groups and organisations. Twitter allows users to post shortmessages called tweets. This short form of social media has proven to beincredibly popular and is estimated to have over 20 million users. When signingup, you can decide whether to have a public or protected profile.(d) LinkedIn - the key business networking tool used by over 100 million members,predominantly for professional networking. There is an option to limit access toyour profile for particular people or classes of people to view.(e) YouTube - second biggest search engine in the world. It is a video-sharing websiteused to find information on almost any topic. Most of the content is uploaded byindividuals, however more and more organisations are beginning to use this socialnetworking medium to promote their activities. You can now upload privatevideos, limiting who can view them.2. Prevalence in healthThere are millions of consumers currently sharing their health experiences online. Manyhospitals have blogs, Facebook pages, YouTube Channels and use Twitter. As at 8 May2011, in the United States alone, healthcare organisations and centres were responsiblefor 3,289 social media listings (486 YouTube Channels, 777 Facebook pages, 714 Twitteraccounts, 469 LinkedIn accounts, 723 foursquare accounts and 120 blogs).This graph (from October 2010) shows the proportion of US Hospitals using social mediaaccounts as compared with Australian Hospitals. While the proportion is significantlygreater, it is inevitable that Australia will follow suit and obstetric care providers need tobe prepared for the ramifications.3. The RisksThere are various risks in relation to the use of social media by obstetric care providers.They can be summarised as follows:
  2. 2. 2ME_98936265_1 (W2003x)(a) employment – the manner in which use of social media intersects with theemployment relationships;(b) boundaries and professional obligations – particularly of regulated healthcareprofessionals such as obstetricians and midwives;(c) privacy and confidentiality – which is paramount for the provision of obstetriccare and generally the biggest threat posed by use of social media;(d) advertising – although there are certainly some benefits available through socialmedia, there are specific risks associated with the specific advertising guidelinesthat bind healthcare professionals;(e) reputation – the reach and speed with which information can be spread throughsocial media can pose serious risks to an individuals or organisations reputation;(f) intellectual property issues – must be considered where other peoples content isused;(g) unlawful conduct – which includes bullying, harassment, discrimination anddefamation – and the risks for an employer for unlawful conduct of others on theirsocial media pages.These issues will generally set the agenda for this seminar.4. Use by EmployersPre-employment and pre-credentialing screening(a) Increased use of Google and social media searches(i) More and more employers are looking at what is in Cyberspace whenconsidering a prospective employees job application. They are often doingthis through Google searching a prospective employee.(ii) This is likely to occur outside the structured recruitment process. The factthat it is easy to do, doesnt mean that it is risk free.(b) Restrictions on use of information?(i) Privacy principles – collection/use(A) If an employer collates information from a print screen fromFacebook/Google etc, this will constitute personal informationregarding the prospective employee (even though it is in the publicdomain) and National Privacy Principles (NPP) will apply.(B) If you are printing the information and putting it on the prospectiveemployees file, the prospective employee will have the right torequest that information from their file under the NPP if they are notsuccessful in their application for employment.(ii) Discrimination
  3. 3. 3ME_98936265_1 (W2003x)(A) Be careful you are not using the information gathered for adiscriminatory reason.(B) If you conduct online searches and choose not to employ someonedue to what you discover, this person could bring an adverse actionclaim on the basis that you chose not to employ them for anunlawful reason. It would then be for the employer to prove that thiswas not the case.(c) Who’s cybervetting who?(i) When you as an employer look at things in Cyerbspace someone else, suchas the prospective employee, may be able to see that you are looking atthem – you may be leaving a trail.(d) Consultant Obstetric Staff(i) While Consultant Staff may not be employees, they may still be subject tosimular Cyber checks by prospective hospitals in the course of anapplication to become credentialled.5. Use by EmployeesManaging employees on social media(a) During working hours/using your systems?(i) productivityExcessive use of time on social media may be related to employees nothaving enough to do or being poorly managed.(ii) inappropriate behaviourWhat sort of behaviour are employees engaging in? It must not constitutebullying or harassment etc. The employer needs to provide employees withclarity over what they do not want employees to be doing during workhours or while using their system.(iii) monitoringWhat are employers doing to monitor employees? Employers should lookat their IT policies to make sure they are compliant with the SurveillanceAct requirements. There is specific language you should be using aboutcontinuant and/or intermittent monitoring.(b) Outside work hours/not using your system?The general test for whether behaviour outside the workplace can lead todisciplinary action is that set our in v Telstra Corporation Ltd [1998] IRCommA 1592(a case which dealt with a physical altercation between two workers in a hotelroom). The Court will look at whether the behaviour:
  4. 4. 4ME_98936265_1 (W2003x)(i) is likely to cause serious damage to relationship between employer andemployee;(ii) damages employers interests; and(iii) is incompatible with employees duties as an employee (this allows theCourt to take into consideration the nature of the employment – differentstandards of expectation and behaviour may apply for different roles).(c) For Consultant Staff – the ability of a hospital to monitor and take action inrelation to use of social media outside of working hours or not using organisationssystem would generally depend on the applicable by-laws or otherwise terms ofengagement.(d) There have been a number of recent employment cases relating specifically toemployee conduct on social media............................................................................................................................................................Case Example – Sally Anne Fitzgerald v Dianna Smith t/a Escape Hair Design [2010] FWA7358Hairdresser Sally-Anne Fitzgerald wrote a post saying:“Xmas „Bonus‟ along side a job warning, followed by no holiday pay!!! Whoooooo! TheHairdressing Industry Rocks man!!! AWESOME!!!”Her employer dismissed her. Following her termination she made an unfair dismissal claim inFair Work AustraliaCourts comments in Fitzgeralds case: No right to sit in judgment on employees behaviour out of hours; Employees have a right to a private life; Only in limited circumstances that an employer could validly terminate an employee forconduct outside work; The conduct in question didnt damage the business but could have ‘breached trust andconfidence’ between employer and employee. However, the employer had sat onknowledge of the post for four weeks before terminating Ms Fitzgerald. If so outraged bythe conduct, the employer should have done something more quickly; Employees foolish to think that they may say as they wish with total immunityLessons from the Fitzgerald case:Factors to consider:(a) does the content identify the employer?Is it clear who is being talked about (it does not need to name them – just needs to be easyto reach the conclusion that is who the employer is).(b) how ‘public’?
  5. 5. 5ME_98936265_1 (W2003x)(clients as friends? what are the privacy settings?). Need to reiterate to employees theydon’t have control over what they post and must assume it will be circulated in the public.(c) nature of comment:(i) damage to business(ii) damage to relationship(iii) incompatible with duty as employee(d) express term of contract/policy?Consider an express term not to bring employer into disrepute............................................................................................................................................................Case Example - Louise Dover Ray v Real Insurance Pty Ltd [2010] FWA 8544In this case Ms Dover made an allegation of sexual harassment against her Manager at RealInsurance. The allegation was not substantiated and she was unhappy with the outcome. Shegot on to My Space, started her blog "Corruption".The blog said:When you know that something is unjust, you have two choices. One is to let it go andpretend you saw nothing and that nothing has ever happened. The other is to speak loud,and yell from the top of your lungs that this is not fair, and it is unjust, that this isCORRUPTED.I have just been thru an investigation that in the end, advanced corruption. Theinvestigation sought to ensure that evidence was tampered with, was controlled and wasbiased. It was set to make the victim the perpetrator and that any accusation against thereal perpetrator, that he was exonerated completely...This place covers peoples lives, offering to protect them when catastrophe happens andyet fails to protect the people that work for them. Chasing dollars over safety. Witchhunting. Nothing but witch hunters.So where is the integrity of the workplace? Where is the concern of the SeniorManagement that is meant to be protecting the workers from harassment, intimidation,bullying and sexual advances that were UNWANTED, UNINVITED ANDUNSOLICITED? I will tell you. That integrity was in a bunch of words that they calledtheir values. They were absolute lies, absolute mockeries of what they stood for.The blog did not name her employer but her employer sent a show cause letter and asked her totake down the blog. She refused and was terminated.The blog couldn’t be considered to be anonymous – the blog identified Ms Dover-Ray byphotograph and name. It referred to the investigation she had just been through and it was abouther workplace experience. Therefore it would have been clear to anyone who knew her that shewas referring to her employment with Real Insurance. Her conduct damaged the relationship andthere was no need to decide whether it involved a breach of trust and confidence. The conductof Ms Dover-Ray in publishing the blog and refusing to modify or remove it within a reasonableperiod was a valid reason for termination.
  6. 6. 6ME_98936265_1 (W2003x)...........................................................................................................................................................Case Example: Damian O’Keefe v Williams Muir’s Pty Ltd t/a Troy Williams The Good Guys[2011] FWA 5311.This case involved the dismissal of an employee who had made a series of comments on hisemployer‟s failure to pay him the correct amount. The employee had written:“wonders how the f**ck work can be so f**cking useless as mess up my pay again. C**ts aregoing down tomorrow”.Fair Work Australia upheld the employees dismissal. It noted the employee’s argument that hiscomments were made privately, but held that the fact that the comments were made on theemployee’s home computer, and out of work hours, did not make any difference in thecircumstances............................................................................................................................................................6. Cyber bullying and harassment(a) Social media introduces another potential means to discriminate, bully and harass.(b) Considerations:(i) Unwelcome conduct?(A) Does the conduct involve an unsolicited act of physical intimacy, anunsolicited request or demand for sexual favours, a remark withsexual connotations relating to the other person, any otherunwelcome conduct of a sexual nature in relation to the otherperson?(ii) Harassment/bullying?(A) Does the conduct have the intention of offending, humiliating orintimidating the other person?(B) Would a reasonable person have anticipated that the other personwould be offended, humiliated or intimidated by the conduct?(iii) Outside work? Connection to employment?(A) Even if the conduct occurs outside of work – can a connection toemployment still be established? The considerations in Rose vTelstra Corp Ltd will apply.(c) Employer liabilityWhere cyber bullying/harassment is between fellow employees, Tribunals areerring on concluding that there is a connection to work, particularly where one ofthe employees raises the issues at work. There is a distinct possibility that where acomplaint by one employee is made against another, the employer may be joinedas a party to the complaint (issues of vicarious liability).
  7. 7. 7ME_98936265_1 (W2003x)7. Practical Tips(a) Social networking/media policy(i) Where employers are asking employees to use social media as part of theirrole there should be a policy addressing issues such as:(A) confidential information;(B) intellectual property;(C) misrepresentation;(D) defamation;(E) not bring employer into disrepute;(I) link to Employer?(II) Don’t allow people to link themselves and your organisationother than on strict parameters.(F) Conduct outside of work:(I) Employees should not have any expectation of privacy whenusing employers system.(II) When posting on Facebook/Twitter etc its in the publicdomain and dont assume it is private.(ii) Consequence of breachLet employees know that there are consequences for breach (so you canpoint to it).(b) Other Policies(i) Recruitment policy:(A) Cybervetting – stance? Guidelines?(B) If you are allowing people to use social media, what guidelines areyou going to give them?(ii) Discrimination and harassment policy:Update to refer to use of technology including social networking(iii) IT policy:Check whether you have the ability to monitor staff, and that notice hasbeen given.(c) Contracts and training
  8. 8. 8ME_98936265_1 (W2003x)(i) Update to include reference to an obligation not to bring self or employerinto disrepute.(ii) Include a specific reference to social media if appropriate.(iii) Training? Staff – induction?(A) Newcomers may be people who have grown up on Facebook anduse it everyday. You need to ensure they understand they must usethe same etiquette as for other forms of written communication.Conduct online on behalf of the employer must be professional at alltimes.(B) Educate practice managers about the issues social media raises bothin relation to their conduct and that of other employees.8. Boundaries and professional obligations(a) Obstetric professionals not only owe duties to employers and patients, but also totheir profession to uphold public trust and confidence in the profession and notbring the profession into disrepute. Just as seemingly private conduct throughsocial media and the internet generally can negatively impact on employmentobligations, it can also impact on professional obligations.(b) Healthcare Professionals including obstetricians and midwives are regulatedthrough the Health Practitioner Regulation National Law (Victoria) Act 2009, andinterstate equivalents (the National Law). Section 5 of the National Law definesboth unprofessional conduct and professional misconduct to include conduct thatis of a lesser standard than that which might reasonably be expected of the healthpractitioner by the public or the practitioner’s professional peers. This can includeonline conduct.(c) The more common areas in which social media can increase the risk of obstetricpractitioners breaching their professional obligations are through:(i) bringing the profession or colleagues into disrepute through eithercriticising other practitioners or your own reprehensible conduct;(ii) professional boundary violations by adding patients as friends, ultimatelyblurring the boundaries between a treating and personal relationship;(iii) providing unsolicited and negligent medical advice through social media;and(iv) breaching patient privacy and confidentiality.(d) Boundaries example – adding patients as a friend on Facebook(i) Where relationships between obstetric practitioner and patients are notbased on clinical care, a number of ethical considerations are raised. As apower imbalance can exist in any obstetric practitioner-patient relationshipit is important that a professional boundary is maintained such that patientsare protected from being exploited.
  9. 9. 9ME_98936265_1 (W2003x)(ii) Where patients have sent friend requests to obstetric practitioners there isthe potential for inappropriate boundary transgressions, particularly wherepreviously there existed only a professional relationship with the patient.This in turn can lend itself to disciplinary action.(iii) It is suggested that in these circumstances, obstetric practitioners shouldpolitely refuse any such friend request and explain why the friend request isinappropriate.(iv) Of course, it can occasionally be difficult to identify that someone is yourpatient when you receive a friend request, if you vaguely recognise thename but they do not have any pictures of themselves on their profile.(v) In these cases, it is recommended to politely un-friend and explain thereasons why.9. Privacy and confidentialityOne of the fundamental obligations of healthcare providers such as obstetricians andmidwives to their patients is the obligation to maintain privacy and confidentiality.Health information about an individual is automatically considered sensitive informationand deserving of a higher level of protection than simply personal information.Privacy and confidentiality in the healthcare setting are governed by a variety of differentstate and federal legislation, each of which impute the same basic obligations. Theobligations most likely to cross-over with use of social media by obstetric practitionersare:(a) CollectionIn most cases, collection of information for uploading to social media willnot be necessary for one or more of your or your organisations functions,so you would need to obtain express consent to do so.(b) Use and DisclosureSimilarly, using or disclosing medical information through social mediawill generally not be lawfully permitted unless patient consent has beenobtained.(c) Although there is currently no enforceable action for a breach of privacy betweentwo individuals in a private capacity (for example, between two patients) actionsfor a breach of confidence have recently been expanded such that the traditionalrelationship of trust and confidence is no longer required.So long as the complainant can demonstrate that they had a reasonable expectationof privacy and the other person knew or ought to have known of the expectation,there is potentially a claim for breach of confidence.(d) Risks arising in social media:(i) the most common privacy confidentiality risk arising through use of socialmedia is the difficulty of ever truly de-identifying information:
  10. 10. 10ME_98936265_1 (W2003x)(ii) you need to make sure that the individuals identity cannot be ascertainedthrough the totality of information available not only on the social mediapage, but through the internet generally;(iii) the other main risk is the generally public nature of social media, evenwhen you have your privacy settings closed – as information can be spreadquickly and easily through friend networks;(e) Tips for obstetric practitioners:(i) As health professionals, refrain from posting any private or confidentialinformation on a social media site without express consent from theindividual to do so;(ii) In order to protect your patients as far as possible against breaches ofconfidentiality by other patients, hospitals should include in their admissionagreement or patient charter an expectation that patients will respect theprivacy and confidentiality of other patients.10. Advertising(a) Online advertising generally provides a major advantage over traditionaladvertising as it:(i) allows for the immediate publishing of information and content unlimitedby geography or time;(ii) is relatively inexpensive and represents a flexible and easily changeablemethod of publication;(iii) allows for the customization of distribution of advertisements, based onusers demographic information or interests. For example, Yahoo andGoogle advertising platforms enable ads to be shown on relevant web pagesor alongside relevant search results and Facebook enables advertisers totarget their advertisements on the basis of location, age and interests;(iv) allows the advertiser to interact and build relationships directly with endusers meaning that an advertising message can be transformed into a trustedreferral from a users friends and you are able to keep your end usersupdated.(b) Despite the myriad of benefits, advertising via social media is not without risk:(i) the laws applying to advertising through social media are the same as thosethat would apply to traditional modes of advertising, but there are increasedrisks through using social media due to:(A) the ease with which it can be uploaded; and(B) the user generated features of social media which mean that themessage you are trying to get across can be blurred, undone ormisinterpreted through comments posted by others;
  11. 11. 11ME_98936265_1 (W2003x)(ii) also unique to the health care sector are the advertising guidelines under theNational Law and the perfect example of the risks posed by advertisingthrough social media is the prohibition against testimonials;(A) Section 133 of the National Law prohibits the use of testimonials orpurported testimonials to advertise a regulated health product orservice;(B) so a post from a patient which praises the care or treatment providedby regulated health practitioners, such as obstetricians andmidwives, or health services may potentially be a testimonial;(C) the question then becomes when is it considered to be used foradvertising and when with the health care provider be heldresponsible for it?(D) again the act is silent, but the guidelines released by AHPRA clearlyincorporate any form of public communication which would includepublic messages on social media sites;(E) the guidelines also place responsibility for ensuring compliance ofall advertising with the health care provider and recent cases haveindicated that where there is the ability to control the publication ofthird party testimonials, or for example the capacity to remove suchtestimonials from social media sites within their control, thepractitioner or provider may be found liable for a breach of theNational Law by failing to remove it.11. Responsibility/liability for material posted on organisation site(a) A number of Google employees were recently charged in Italy for criminaldefamation and failure to comply with a privacy code – where an offensive videowas posted to a Google site, which the employees had the ability to remove – theywere found to owe some duties in relation to the material.(b) More recently in Australia in the health sector there was the decision in ACCC vAllergy Pathway Pty Ltd & Anor (NO2) [2011] FWA 74:(i) Allergy Pathway was found to have breached the Trade Practices Act,through testimonials posted to its social media pages by third parties;(ii) Finkelstein J of the Federal Court was satisfied that the company wasresponsible for the testimonials because it:(A) was aware that they had been posted;(B) had power to remove them; and(C) did not take any steps to remove them;(c) The host of a site will be responsible for ensuring the site does not containunlawful or inappropriate material – and in the case of health care providers, that itdoes not contain any testimonials or purported testimonials;
  12. 12. 12ME_98936265_1 (W2003x)(d) If you have a social media site, ensure a reasonably regular review of its contentand remove any potentially offending material. If your site invites comments, thenconsider having a specific moderation policy;(e) Use of disclaimers – these can be helpful to advise users of the expectations uponthem, but do not replace the obligation on the host to monitor and removeinappropriate material;(f) One issue to be aware of is that while social media itself may transcendgeographical boundaries, the regulatory regimes under which obstetricpractitioners operate varies widely between different countries. For example, inthe US, where medical specialists are engaged directly by patients, advertisinglaws are much more permissive. You would therefore need to be careful inlooking overseas for inspiration or advice when setting up a social media platform.12. ReputationIn a field such as obstetric care where trust is inherent to the success of treatment,maintenance of a positive reputation is a paramount concern.13. Adverse Reviews(a) The concept of adverse reviews for medical practitioners is not new, with word ofmouth and recommendations long influencing our decisions when choosingpractitioners.(b) The major impact of the internet and social media is that these messages are nowtranscending not only social and community groups but also geographical and timelimitations.(c) The internet has spawned a new age of unprecedented mass publication. The easewith which information can be uploaded, transmitted and accessed by a potentiallyhuge audience has created an environment in which potentially defamatorymaterial can flourish.(d) This is particularly prevalent in obstetric care, as there are a number of internetforums in which expectant mothers discuss, compare and rate their obstetricians,midwives and hospitals.(e) Generally, you do not have personal control over the information, so if it is postedto a site you dont control, the only way you can have it removed is if it is unlawfuland even then, you are at the mercy of the site producer or have to expendsignificant time and cost in pursing the matter through litigation.14. Defamation(a) For a successful action in defamation, the content must be published, the aggrievedperson must be capable of identification and the material defamatory.(b) The material will be defamatory if it contains a false imputation by which thepublished material:(i) exposes a person to ridicule, odium, contempt; or(ii) lowers the persons reputation in the eyes of members of the community; or
  13. 13. 13ME_98936265_1 (W2003x)(iii) causes people to shun or avoid the person; or(iv) injures the persons professional reputation.(c) There are a number of defences to an action in defamation which can makeenforcement very difficult. Of particular note are the defences of justification,honest opinion, contextual truth and qualified privilege.(i) Justification, or that the material is substantially true;(ii) Honest opinion:(A) an expression of opinion honestly held by the maker, as opposed to astatement of fact and must concern a matter of public interest, whichthe quality of health care will generally be.(iii) Contextual truth:(A) Essentially, if a lot is said and only one aspect can be legitimatelychallenged as defamatory, a defence will be available if thedefendant can establish that what is defamatory is no worse that theother comments made;(B) For example if a post was to be made stating that a doctor had beennegligent and had not worn gloves, then even if the glove commentwas untrue the negligence assertion is of such significance that theglove comment is unlikely to further harm the doctors reputation;(iv) Qualified privilege:This defence applies in the context where the communicating parties have acommon interest in the subject matter of the communication, such as a legalduty or obligation.(d) However, in addition to the smorgasbord of defences available, the difficulties insucceeding in an action for defamation with respect to material on social media is:(i) the jurisdictional difficulties, given that the defamed person, the defamerand the host of the defamatory material are often all in differentjurisdictions. However within Australia, there is now essentially onecodified set of defamation laws, and the High Court has held thatpublication, for the purpose of a defamation claim, occurs where and whenthe material is downloaded and comprehended by the recipient;(ii) identification difficulties, given the propensity for many bloggers anddefamers to shield themselves behind anonymous personas or pseudonyms,it can be difficult to even identify the defamer; and(iii) enforcement, which is related to the jurisdictional difficulties, being able toforce the defamer or host to carry out an order of a court of a differentjurisdiction.
  14. 14. 14ME_98936265_1 (W2003x)15. Risk of worse publicity(a) The other and potentially more important risk in taking any steps in response to anadverse review is the risk of worse publicity. Three very well known examples ofthis are:(i) The Streisand case in 2003 where, environmental activist Kenneth Adelmanposted aerial photos of Barbra Streisand’s Malibu beach house on hiswebsite as part of an environmental survey. Streisand sued him,unsuccessfully, for $50 million. Following the court action, Adelmanestimates that the publicity surrounding the lawsuit garnished more than amillion visitors to his site. The photo, in question, was also re-published bythe Associated Press and reprinted in newspapers around the world –exactly the result Streisand did not want.(ii) The landmark US defamation case involving Liskula Cohen, a formerVogue Australia cover girl, who sued Google to reveal the identity of theblogger behind “Skanks in NYC”, hosted by _Google‟s blogger service.The anonymous blogger had written about Cohen in less than flatteringterms. Cohen believed the posts were defamatory. The Court ruled thatCohen was entitled to sue the blogger for defamation and ordered Google toprovide the blogger’s name. However, the attention to the case meant thatthe content of the blog and defamatory statement became much moreprominent in the public forum than it would have been otherwise.(iii) Greenpeace put up a satirical video on Youtube criticising Nestle for usingpalm oil sourced from producers that damaged rainforests. The clip usedthe Kit Kat logo. Nestle requested that Youtube remove the video, citingcopyright infringement. This was a conventional legal response.At that point less than a thousand people had seen the video. However, onceNestle’s request became public knowledge, Greenpeace reposted the videoon another webpage and it went viral. Over 200,000 people have sincewatched the video.(b) Thus careful consideration must be undertaken before pursuing a defamation case,as it may result in a worse outcome for yourself. As a first step, it would usuallybe wise to consider a private complaint to the host of the site.(c) The suggestion of many health professionals operating in the social media space, isto instead focus your attention on ensuring that the good reviews and good contentabout you simply outweigh any bad reviews.16. Summary(a) Social media is coming to obstetric care(b) Legal obligations are the same, but:(i) the risks are higher(ii) damage is more amplified and more likely(c) Manage the risks through:
  15. 15. 15ME_98936265_1 (W2003x)(i) policies, education and training(ii) regular reviews of relevant social media sites

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