display:none
Can Doctors Use Testimonials in Australia?

Can Doctors Use Testimonials in Australia?

by | Nov 3, 2022 | Consumer Law, Law for Online Business, Legal

Can Doctors Use Testimonials in Australia?

Can Doctors Use Testimonials In Australia?

Doctors and other registered health practitioners can only use testimonials in a very limited fashion. 

As a general overview and in simple terms, the limits are:

  • star ratings are acceptable, without commentary
  • general commentary like “friendly prompt service” or “nice offices, comfortable waiting chairs” and similar comments that are not about the health service received, are acceptable.

Registered health practitioners in Australia are required to comply with AHPRA (Australian Health Practitioner Regulation Agency) advertising guidelines, which are set out in section 133 of the National Law (short for the Health Practitioner Regulation National Law).

Due to the complexity of what is, and what is not allowed in advertising of health services, AHPRA has created an advertising hub on its website to assist practitioners.  

Since the National Law commenced in 2010 testimonials have been specifically prohibited under section 133(1)(c) as follows:

  1. A person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that—

(c) uses testimonials or purported testimonials about the service or business; …

In May 2022 hope appeared in the form of proposed amendments to the National Law which were tabled to remove the prohibition on testimonials. It was proposed that section 133(1)(c) would be deleted and that testimonials would be treated in the same way as other forms of advertising. 

The explanatory notes to the draft legislation acknowledged that the prohibition on testimonials was “…out of step with consumer expectations and current marketing and advertising practices. Testimonials and reviews are common online, and new forms of advertising, particularly on social media, have blurred the lines between information and advertising. Consumers increasingly expect to have access to reviews and testimonials when purchasing health services and expect to be able to share their views about health services and practitioners.”

The removal of that prohibition would have meant that doctors and other health practitioners could have started using testimonials, provided that the testimonials continued to comply with the other rules around advertising, such as not being misleading or deceptive. 

Note that a testimonial saying “Dr Yu cured me of diabetes with acupuncture” is still likely to be prohibited, because the practitioner who uses that testimonials would be required to produce evidence-based research showing a cure was possible through acupuncture treatment. The practitioner in that instance, if testimonials were permitted, would be wise to ask their patient to amend the comment to say something like – “After three months of treatment with acupuncture by Dr Yu I no longer experience any symptoms of diabetes.” 

Any use of the word “cure” raises red flags with regulators. 

However, we are getting ahead of ourselves. 

Although testimonials are still prohibited, penalties were increased significantly under the new legislation to $60,000 for an advertising offence by an individual and $120,000 for a company.

Some concerns were raised about removing the prohibition on using testimonials. One report that surveyed consumers on their beliefs about testimonials found “Testimonials were reported to be lacking in reliability (67.7%) and that they should not be used in healthcare in the same manner as they are used in other industries. Only 44.8% of participants reported that they felt confident to spot a review that was not written by a genuine user of a service.”

The straw that broke the camel’s back and reversed the proposal to remove the prohibition on testimonials, which was removed from the draft legislation before it was passed in October 2022 – is the fault of cosmetic surgeons. 

Cosmetic surgery is not an identified area of specialty governed by AHPRA and the title “cosmetic surgeon” is not a protected title. What that means is that a person can call themselves a cosmetic surgeon even if they have no special training or qualifications to carry out cosmetic procedures. 

In late 2021 an investigation into the cosmetic surgery industry by AHPRA and the Medical Board of Australia (also part of AHPRA) was announced in the wake of media published by Four Corners and Nine newspapers based upon their investigations into a string of clinics owned by an identified plastic surgeon. 

The media reports alleged hygiene and safety breaches, and patients suffering ongoing pain, physical and psychological issues. 

The report from the AHPRA investigation was published on 1 September 2022 and a number of recommendations were made around managing advertising of cosmetic procedures. 

Whilst no specific recommendation was made about the use of testimonials, it was noted that the use of testimonials would not be helpful in avoiding a lack of reliable information for consumers because “Testimonials, when selectively used by practitioners, are more likely to be the opposite; subjective and biased (even when they may not be false, misleading or deceptive). In these circumstances, the review is concerned that testimonials have the potential to further contribute to misunderstanding and confusion among consumers.” [page 87]

Due to the findings made in the report and the limited resources available to AHPRA to implement and monitor changes in its policies, procedures and guidelines, reforms for cosmetic surgeons have taken priority over the removal of the prohibition on testimonials. 

The explanatory notes to the legislation as passed note that the issue of patient testimonials needed to be consistent with actions and reforms for cosmetic surgery.  

There is no timeframe for AHPRAs work in reforming how cosmetic surgery is regulated, so doctors and other health practitioners should not anticipate a lift in the prohibition on using testimonials any time in the near future, and should keep in mind the significant increase in penalties. 

How can Onyx Legal help you?

If you are a health practitioner and worried about the risks in your advertising schedule an appointment with us to have it reviewed.

Make an Appointment

Australia Consumer Law: How Does it Affect Your Business?

Australia Consumer Law: How Does it Affect Your Business?

by | Nov 11, 2021 | Consumer Law, Law for Online Business, Legal

Australia Consumer Law: How Does it Affect Your Business?

australian consumer law: how does it affect your business?

From 1 July 2021 the monetary limit that applies to consumer goods or services under the Australian Consumer Law increased from $40,000 to $100,000. So, what does that mean for you?

Let’s start by looking at who is a consumer.

Who is a consumer under the Australian Consumer Law (ACL)?

Since 1 July 2021, a consumer can be any person or entity that purchases goods or services from you, where those goods or services –

  • are purchased for $100,000 or less;
  • or are ordinarily acquired for personal, domestic or household use,
  • or are a vehicle or trailer used for transporting goods on public roads (more than personal use).

For anything purchased up to 30 June 2021, the value was $40,000. This is the first uplift in that value since 1986 and aims to protect a broader group of consumers. Whether your customer is a person, or a company or any other type of entity is irrelevant is the goods or services purchased were under $100,000. So, if you deal B2B, your business still has to meet consumer law obligations.

Similar rules apply to the provision of financial services under the Australian Securities Investment Commission (ASIC) legislation, and the monetary limit of financial services has also been lifted.

What protections apply to consumers?

As soon as a purchaser is classified a consumer, the ACL consumer guarantees apply. Consumer guarantees are automatic and apply in addition to any warranties you might offer.

A warranty and a guarantee are similar things. They are both promises that you make about your business goods or services. It might be helpful to consider them from an ‘active’ and ‘passive’ perspective. Consumer guarantees are automatic. A business doesn’t have to actively do anything, they just exist. A warranty is a voluntary promise, something you offer in addition to consumer guarantees. So, a ’30 day money back guarantee’ is actually an express warranty. Go figure.

There are nine consumer guarantees for goods, and three for services.

 

ProductsServices
  • Will receive clear title
  • Will have undisturbed possession
  • No undisclosed security over the goods
  • Acceptable quality
  • Fit for purpose
  • Match description
  • Match sample or demo
  • Repairs and spare parts are available
  • Express warranties will be met
  • Acceptable care and skill
  • Fit for purpose
  • Delivered within a reasonable time

Clear title and undisturbed possession just mean that when you purchase it, the buyer knows that there is not another owner or some other costs in the background. An example might be a business or relationship break up where one person sells something second hand and it actually belonged to the other partner. The person who really owned it can argue that the person who sold it did not have the right to do so and claim it back. Equally, a customer might want to pick something up from customs only to discover there are fees owed before they can take away the goods.

Undisclosed security is where money is owed. For example, if you want to buy a piece of machinery and there is finance owed on it and a PPSR registration against it, so the lender has priority over your claim and can sell the machinery to recover the debt, even though you bought it in good faith.

Many of the consumer guarantees are straight forward, but acceptable quality will depend on the value and quality of the goods. If you pay $100 for something that is advertised as an outdoor marquee, you might expect it to last at least a day, but you wouldn’t expect it to last for years and you wouldn’t expect it to last through high winds. On the other hand, you would expect a $1200 marquee to be more robust.    

For something to be fit for purpose, the consumer has to let you know what purpose is important to them. So, if a customer says it is important to them that the office chair they are buying can recline, but not fall over with someone who weighs 110kg in the seat, then the office chair needs to be able to meet that specification to be fit for purpose.

The availability of spare parts is important because it can affect what people are prepared to pay for an item. A consumer might be prepared to buy something that will last for a limited period without repair if it is cheap (consider home printers), but not pay for a large office copier without the ability to rely on regular service and repairs.     

What happens if you do not meet a Consumer Guarantee?

If you don’t meet a consumer guarantee, the purchaser has rights to remedies which can include repair, replacement, refund and may also include damages and consequential losses.

Depending on how the failure to meet consumer guarantees came about, you may also be liable for penalties for breaching a prohibition on making false or misleading representations, another provision of the Australian Consumer Law.

The type of remedy will depend on the problem with the product or service. If it is capable of being fixed, it is probably a minor problem and will need to be repaired or replaced. Depending on the value of the product, you also have the option of providing a refund, or the customer may have the option of requesting a refund.  

Consider large retail chains which will refund or replace most items without question simply because it is more efficient than arguing with customers or sending items off for assessment or repair. It also ensures a loyal customer base. Not every business has the same scale to do that.

If it is a major problem and cannot be fixed, then it is the customers choice about replacement or refund and the supplier must provide that replacement or refund and may also have to pay damages for any foreseeable loss resulting from the failure. In considering whether or not something is a major failure, you need to consider whether a reasonable consumer fully acquainted with the nature and extent of the failure would still have purchased the item for the amount that it was sold.

Consider how you might feel in the same position. 

For example

ACCC v Jayco Corporation Pty Ltd [2020]

As most people would know, Jayco is a brand of caravans and recreational vehicles (RVs). Jayco is a manufacturer that sells through dealerships.

The ACCC took action against Jayco to determine whether 4 RVs were of acceptable quality (a consumer guarantee), fit for purpose (a consumer guarantee) and whether the manufacturer was compliant with its express warranties. There was also a claim of misleading and deceptive conduct.

The first RV was a camper trailer. The issues it had were mainly a collection of relatively small poor finishes, but there was also a problem with the alignment of the chassis and a strut that failed in lifting the tent, causing further damage. The Court said –

“At that price point ($27,000+), a reasonable consumer was entitled to expect a commensurate level of quality, including fit and finish. That expectation is consistent with the brochure that Jayco Corp published, and which Consumer read, which was calculated to convey the impression that a Jayco camper trailer was a durable, quality product. The combination of defects with the RV had the cumulative effect that the RV as a whole was not acceptable in appearance and finish, and its presentation was not consistent with the impression conveyed by the Jayco brochure…. In consequence, Consumer was entitled in April 2014 to reject the RV on the ground that the failure to comply with the guarantee of acceptable quality was a major failure…. As a result of the failure of the strut for the tent section on the second occasion, the RV was substantially unfit for purpose.”

The second RV was pop-top caravan that leaked, which was something the Consumer specifically asked about before purchase. Over a 15-month period it was in for repair on approximately 10 occasions. The Court considered the inability to provide shelter from the weather (the leaking soaked mattresses) “went to the heart of one of its purposes” and that “a reasonable consumer, fully acquainted with the defects and what was involved in attempting to repair them, would not have acquired the RV, and therefore there was a major failure” which entitled the Consumer to a replacement or refund.

There was also discussion around the fact that Jayco promoted their products as suitable for a relaxing family holiday, and a leaking roof and chassis would make it unfit for that purpose.

In all cases, Jayco had not provided a replacement or refund of the purchase price of the RVs and in one case was found to have led the consumer to believe that the only remedy available was repair. The court found those representations to be misleading or deceptive (s.18 of the ACL) and false and misleading (s.29 of the ACL). As a result, Jayco was required to pay a penalty of $75,000. It then had to deal with the owners of the RVs.

How to manage your risk of a consumer plan

We can help you to review your terms and conditions of supply of goods or services, whether you make them available online through your website or otherwise.

There are provisions that can be written into terms and conditions to provide you with a level of certainty around what you must do to meet consumer guarantees. For example, with consulting services it might be easiest for you to simply provide the services again rather than offering a refund. This will depend on how amicable the relationship remains with your customer, but may be more attractive that having to refund the consulting fee.

The ACL does require specific wording in terms and conditions depending on the goods, services or warranties you offer.

Once we have your terms worked out, then we can look at your processes with you and how information is shared within your business so that you and your employees understand how best to respond to and deal with requests for replacement or refund.

How can Onyx Legal help you?

Your terms and conditions of supply are important documents for managing your risk. Understanding your risks and having a clear understanding of how to respond to and deal with consumer complaints also makes a big difference. Book at time to discuss your situation with one of our team.

Make an Appointment

Unfair Contract Terms – B2B Contracts Under Investigation

Unfair Contract Terms – B2B Contracts Under Investigation

by | Apr 17, 2019 | Consumer Law, Contracts, Law for Online Business, Legal, Service Agreements

Unfair Contract Terms – B2B Contracts Under Investigation

Is your business in line for an ACCC investigation?

From November 2016, business to business transactions came within the coverage of some provisions of the Australian Consumer Law. The big change was the application of unfair contract terms to business to business contracts involving small businesses, with the intention of helping small business. 

Although the law doesn’t currently make the inclusion of unfair contract terms in a contract illegal, the ACCC is pushing for updates in the law to specify that unfair contract terms are illegal, and to empower the ACCC to issue penalty notices. Until those changes are introduced, either the ACCC or a small business suffering loss, must apply to the court to seek to have the unfair contract term declared void and unenforceable – a slow and cumbersome process. 

Not every B2B contract is covered. The core elements are:

  • the contract is for goods, services or the sale or grant of interest in land
  • one party will be a small business with less than 20 employees
  • the value of the contract involved will be less than $300,000 or, if for more than 12 months duration, have an up front price of less than $1,000,000
  • the contract is a standard form contract rather than something specifically negotiated between the parties.  

Clauses highlighted as potentially unfair include:

  • the ability to end or cancel an agreement unilaterally
  • broad indemnities or excessive limitations of liability
  • unilateral right to change contract terms, including pricing
  • limits on a small businesses ability to exit a contract, including penalties for early termination
  • extended payment terms which may be of detriment to the recipient 

The ACCC has investigated the standard contracts adopted by companies in industries such as car hire, waste removal, telecommunications and agriculture and a number of businesses have agreed to change their contract terms as a result.

This is possibly also the reason for Coles and other large retailers announcing in 2017 that they would start paying small suppliers within 14 days, a big change from the 30-90 days or more some suppliers had experienced.

At present, only a court or tribunal (not the ACCC) can decide that a term is unfair. As at early 2020, the legislation was under review.  ACCC can ask for enforceable undertakings and start court action if it investigates the contract terms of a business and forms an opinion that those terms are unfair. If a court or tribunal does find a term ‘unfair’, the term will be void – this means it is not binding on the parties. The rest of the contract will continue to bind the parties to the extent it is capable of operating without the unfair term.

The ACCC sets annual priorities for investigation and successfully took action against Ashley & Martin Hair Studios and Mitolo Group potato traders in 2019. Don’t let your business become that example.

The ACCC website includes updates of recent prosecutions and enforceable agreements when made. 

How can Onyx Legal help you?

If your standard form contract hasn’t been reviewed in a few years, call us to arrange a fixed price review and update of those terms. If your standard form contracts are very old (they might still refer to the Trade Practices Act 1974 or retention of title) then we might suggest a whole new contract, starting from scratch. Either way, we can provide you a fixed price before we get started.

Make an Appointment

Are you Cryptomining?

Are you Cryptomining?

by | Oct 30, 2017 | Consumer Law, Law for Online Business, Legal

Are you Cryptomining?

  is crypto mining illegal?

Do you remember the old Lemmings computer game? It came out in around the early nineties. Lots of tiny blue and green figures with pick-axes trying to work their way through tunnels and mounds without falling off cliffs.

That’s the picture I get when talking about crypto mining, but its a long way from what really happens. The details are quite complicated, and my background is not technical, so we’ll stick with the basics.

Crypto mining basics

Lifewire are ahead of Wikipedia on this one. Their explanation – “crypto mining is providing bookkeeping services for cryptocurrency, for which you get paid a fraction of each coin“.

A lot of computational power (processing power and speed) is needed to verify cryptocurrency transactions. The why is quite technical and to do with blockchain tech, so I leave you to check that out yourselves.

If you started crypto mining early, you might have made a little money. If you’d invested in cryptocurrency (different to crypto mining) early, you would have made more.

Because crypto mining requires a lot of computational power, there are miners out there now adding little bits of code to unsuspecting websites to harvest computing power. It doesn’t just use the website where the code sits, but also grabs power from visitors to your website.

It has been reported that currently available cryptocurrencies use more energy than Iceland, Syria and Jordan.

This can be done in two ways – legitimately with permission, secretly, without permission.

Cryptomining as Malware

It is the “secretly, without permission” group that is a problem here. Providers like CoinHive and Authedmine enable website owners to embed code onto a website that can access the computer power of visitors to that website for crypto mining. CoinHive does promote full notice to website visitors and opt-in use. This is legitimate.

However, Wordfence have recently reported that some enterprising hackers are already using vulnerabilities in WordPress websites to add code to sites without the website owners knowledge. The code then accesses the computing power of visitors. This can slow down the loading time and user experience of the website affected, and also increase the power used by the visitor’s computer – increasing their costs. Payments for crypto mining go to the hacker, not the website owner and no one is any the wiser, unless they are checking CPU usage.

Cryptomining as Revenue

Apart from website access, there are people around the world who have set up hardware systems to supply processing power for bitcoin. One popular marketplace for connecting sellers of computer power for crypto mining is NiceHash.

cryptomining

In addition, websites with high visitor numbers and decreasing adWords revenue can now use coding to provide their visitors with the option of paying for access, or allowing crypto mining using the visitor‘s computer power for using the website. By way of example, some sites add a button or image that provides visitors with the option of donating computing power to you instead of recieving advertising.

One site I have seen calls it a crypto mining donation, with the explanation “As long as you keep this page open you will support my efforts by donating your computer’s idle time“; although I’m not sure whether it is only idle time that would be used. That would depend upon what code was applied.

Check out this post from Authority Hacker to learn more about the legality and morality of monetising crypto mining.

What does this mean for you?

Firstly – Understand whether crypto mining makes any sense in the context of your business or services. If it does, consider providing visitors with the choice of supporting your business with computing power, and what that means for them. You can do this with FAQs, a disclaimer and or terms and conditions. 

Secondly – check your website for crypto mining code that might have been put there without your knowledge. Get a professional to help you clean it off.

Thirdly – If crypto mining has no part of your business, leave it alone.

How can Onyx Legal help you?

If you’d like to add cryptomining to your website and encourage visitors to use it, then you need help with terms of use and appropriate FAQs.

Make an Appointment