IP Spotlight September 15

The ACCC recently chalked up another victory as part of a recent spate of enforcement efforts targeted at online businesses in the wake of its Digital Platform Inquiry which concluded last year. The overarching lesson here is quite simple. If you are not transparent in your dealings with consumers (and this includes telling them some of the facts but not all of them), whether intentionally or not, then you may be engaging in misleading or deceptive conduct in breach of the Australian Consumer Law. In this recent case, HealthEngine’s misleading conduct and business practices cost it $2.9 million in penalties. As the ACCC’s chairman, Rod Sims put it: These penalties and other orders should serve as an important reminder to all businesses that if they are not upfront with how they will use consumers’ data, they risk breaching the Australian Consumer Law. BACKGROUND HealthEngine operates a website that allows users to search and book medical and health-related appointments with health practices that choose to participate. The ACCC began investigating complaints regarding HealthEngine’s practices on its website in July 2018, and matters came to a head in August 2019 when it launched Federal Court proceedings based broadly on the following allegations: – – HealthEngine had manipulated the user reviews it published in several ways – – it had mispresented to consumers why it did not publish a rating for some health practices – – it misled consumers into thinking that their personal information would stay with HealthEngine, but in fact, consumers’ non-clinical information was being sent to insurance brokers. HealthEngine admitted certain contraventions of the Australian Consumer Law and cooperated with the ACCC investigation.

SO WHAT D I D HEALTHENG I NE DO WRONG? The relevant conduct relates to HealthEngine’s activities between April 2014 and June 2018. HealthEngine’s impugned conduct relates to three different aspects of its website; user reviews, practice ratings and referrals to insurance brokers. USER REV I EWS HealthEngine sent a follow-up survey to users who had booked appointments through the platform, to determine whether they would recommend the relevant health practice to others. – – did not publish negative reviews it received (including disregarding reviews where the user indicated that they would not recommend the health practice to others) – – effectively “sanitised” other reviews by editing the feedback to remove negative comments, changing the meaning of others and/or embellishing them – – sent users who had submitted a review an email with a link to their published review and a note explaining that it may have been modified, with no further explanation. The ACCC’s obvious concern here was that this practice created an inaccurate impression of consumers’ experiences at the various health practices on HealthEngine, and that other consumers may have relied on these manipulated reviews when making their own appointments through the platform. HEALTH PRACT I CE RAT I NGS HealthEngine also used the information from the survey above to calculate and publish ratings for health practices. If 80% or more of users answered that they would recommend the practice to others, then HealthEngine published a rating for that practice. For practices that did not reach the 80% threshold, HealthEngine either indicated that there was no rating or that there was insufficient data to calculate one. Clearly HealthEngine had the data to publish a rating but chose not to do so where the 80% threshold had not been met. The ACCC’s concern here was that, again, the conduct was likely to create a more positive impression of the health practices on HealthEngine’s website. In processing these user reviews, HealthEngine:

IS YOUR ONLINE PLATFORM TRANSPARENT ENOUGH? Three lessons learned from the HealthEngine Case

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