Social media blunders can leave companies in a tricky spot

Around the world social media has changed the manner and timeliness of communication, whether this communication is for personal or commercial use. Customers no longer want to be merely talked to and told. They want organisations to listen to them and to engage with them.

Social media has been found to be the most effective marketing and promotion channel in gaining entry to households. 

More and more operators are setting up their own website, Facebook or Twitter account, 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 in this world comes without a price. Social media requires careful thought in its utilisation. 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 when using social media. In particular, we will focus upon the pharmaceutical industry, which is probably the most heavily regulated industry in the entire world. Most of the major players in this industry either have a Facebook account or have recently removed them and are in the process of improving them or re-evaluating relevant risks and how best to manage them. 

Even though operating in the most highly regulated of industries, participants still need to be aware of the general requirements of applicable Internet laws when establishing any form of social media for their companies. 

If the intention is to have social media that can be linked into patients’ Facebook (no matter the location of patients) there may be a need to ensure that that the content has the prior approval of relevant regulatory agencies in the countries concerned. 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. 

If there is a desire 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 promptly to identify and distinguish what may simply be “complaints” from mandatory “adverse effects/events” reporting obligations. 

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 are not diminished.  

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’ consents. 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-chair of the Asia-Pacific Pharmaceutical and Healthcare Industry Group at Baker & McKenzie.