Social media blunders can put companies in a tricky spot

Usage of social media is no longer merely a new networking channel. Nor is it an entirely novel means of marketing and promoting products. In reality it has been found to be the most effective marketing and promotion channel that can be used to gain entry into many households. Social media technologies take many different forms. It does not take long for users to access websites, Facebook, Twitter and the like. There are no statutory limitations on hours, ratios or proportions of programme content and advertisements, such as exist with TV and radio. There are few legal boundaries or territories. Social media allow users to access customers and other users anywhere around the world, around the clock. Within very reasonable budgets its effectiveness can compare favourably with more traditional modes of communication. Increasingly social media are important for more than marketing and advertising. They can also influence and affect those involved with other functions such as R&D and personnel.

More and more operators set up their own website, Facebook or Twitter accounts, considering them to be the most powerful channel to communicate directly with customers. Content can be centrally managed from one location and there are many other attractions. However, nothing comes without a price. Social media require careful thought in utilization. Improperly or inappropriately handled, social media can do harm, both personally and to businesses.

In this article, we will focus on some key legal exposures that are likely to arise (almost unavoidably) when using social media. In particular, we will focus upon the pharmaceutical industry, which is probably the most heavily regulated industry in the world. If you have observed the online activities of some of the major players in this industry, most either have their own Facebook page or are in the process of improving them or re-evaluating relevant risks and how best to manage them. Whatever stage these players are at, some of the issues that are likely to arise are set out below. 

Even though operating in the most highly regulated of industries (in most countries by specific legislation and regulations) participants still need to be aware of the general requirements of applicable Internet laws when establishing any form of social media for their companies, both in general or for specific products. 

If the intention is to have social media that can be linked into patients’ Facebook page (no matter the location of the patient) there may be a need to ensure that the content of that social media has the prior approval of relevant regulatory agencies in the countries concerned. In many countries products will require approval of regulators before they can be advertised or promoted. Moreover many countries do not allow the advertisement or promotion of prescription only medicines directly to consumers. There is a need to understand applicable laws and to ensure there will be no violation of these laws. 

There may be a need to ensure there is a sufficient team continuously managing and monitoring social media so as to ensure that statements loaded onto sites from third parties do not attract exposure for claims such as defamation or copyright or trademark infringement. 

There may be a need to ensure there is no illegal or inappropriate promotion of any “off-label” usage. 

Assuming there is a wish or need to obtain product feedback from users, including what may be classified as “adverse effects/events” reports (which typically attract consequential, mandatory reporting obligations to regulators) there will be a need to ensure that systems are in place to promptly identify and distinguish what may simply be “complaints” from mandatory “adverse effects/events” reporting obligations. If there is (or may be) any mandatory reporting obligation, there will be a need to ensure this obligation is met. Alternatively, if there is a complaint, there will be a need to respond appropriately and promptly so as to ensure the reputation of products and/or of the organisation concerned. 

Adverse comparisons and comments (even if unintentional) may be posted from a third party. There may be serious potential legal implications, including under defamation and fair competition laws. 

Do codes of conduct of relevant industry associations have any potential application to any social media activities (either intentional or unintentional)? 

Patient data and information obtained through social media may raise issues of confidentiality and the need to obtain patients’ consent. It may also have product liability implications.

 The world is moving fast. Technology is helping to spin it even faster. There is a need to move resolutely but at the same time with care and an adequate appreciation of what may be involved.

 

Peerapan Tungsuwan is a partner and chair of the Asia-Pacific Pharmaceutical & Healthcare Industry Group, Baker & McKenzie Ltd.