Medical service advertising: what should you know?

According to research data, the choice of a private medical institution is most influenced by the qualifications of doctors working there, modern medical equipment, location, service price, fast service availability and patient reviews. According to Žygimantas Kvartūnas, head of the integrated marketing agency „Expertmedia“, most residents look for information about an institution and its specialists online, so companies providing medical services are using more and more advertising tools in the social space, which give them added value and have a positive impact on increasing the number of patients.

According to Ž. Kvartūnas, patients do not want to make a mistake when choosing a medical institution, incur high costs and not get the desired result. Therefore, one of the most effective advertising tools that help make a decision is clinic patient reviews, successful treatment stories and demonstrating doctors’ work results (before and after).

„Patient stories allow potential clients to recognize their own situation, learn how the treatment proceeds, and see the result. This gives them more confidence in the institution and/or doctor and provides more motivation to seek treatment. Before/after work galleries have a similar effect. Patient reviews reinforce the values and benefits of a medical institution, increase its credibility, reputation and attractiveness to future patients.“

According to A. Grinys, the legal regulation of medical advertising in our country is quite strict. „Joking aside, you could say that nothing is allowed in medical service advertising. But if we speak a little more seriously, the requirements for medical service advertising, including content considered medical service advertising on social networks, restricting the creative freedom of its authors, are still not categorically prohibitive of any medical service advertising,“ he says. According to the lawyer, medical service advertising is essentially subject to two categories of restrictions:

• Related to the prohibition on using the patient’s name, surname and image.
• Related to the prohibition for doctors or persons forming a doctor’s image to advertise medical services.

Speaking about the use of patient image in medical service advertising, A. Grinys notes that the regulation is not particularly lenient toward him. Quite the opposite – the use of patient image is prohibited in medical service advertising. According to current court practice interpretations, the essential component of patient image is what allows them to be identified as a specific patient. And specifically – the body part by which you would recognize someone you once met in a crowd – it is the face. Therefore, in essence, any content that uses the face of a specific medical service recipient should not be published on social networks. The lawyer emphasizes that this prohibition covers not only the entire face but also separate parts of it that allow identification of a specific person.

„For example, if some famous person has a distinctive beard or unusual nose shape – the use of just these parts of their face in advertising disseminated in the social space could already be considered unlawful use of patient image. On the other hand, publishing photos of body parts that have been corrected through certain procedures/operations, with the patient’s consent, is not prohibited – but even in such a case these photos should not allow identification of a specific natural person to whom the medical service was provided,“ the lawyer explains.

However, according to him, there is also another side of the coin. Today, artificial intelligence has become not only a hot topic in news portals, but also a working tool used by a multitude of service providers. One of the possible uses of this tool is photo retouching to the point of complete unrecognizability of the persons captured in them, publishing only the specific medical service result. For example, the condition of teeth before and after treatment.

Answering the question whether such actions are possible, A. Grinys says that there is no direct prohibition in the regulation, but, as lawyers often like to say: „it all depends on the circumstances.“ In each specific case, content depersonalization must be performed in such a way that the remaining uncorrected image (or even an insufficiently corrected portion of the original image) does not allow identification of the patient to whom medical services were successfully provided.

According to him, in business practice there are still cases where fake patient reviews are used. More precisely – a particularly positive comment generated by a Bot (a computer program that automatically performs certain actions that a person working with a computer could perform), hidden under the name, surname and photo of an allegedly real person (John Doe).

„Is this legal? Unequivocally not. Such a John Doe review, having become part of medical service advertising in the social space, violates not only the regulation specifically applicable to medical content, but also the criterion applicable to any kind of advertising, prohibiting the creation of misleading advertising. The use of bot-generated reviews would in any case be considered as misleading the consumer seeking to acquire services, because in this way an appearance is created as if a really existing John Doe became the consequence of an extremely successful treatment result. This may give rise to an unjustified consumer expectation about the quality of services to be provided, which would turn into hope that the impossible can become possible,“ A. Grinys points out.

Nevertheless, according to the lawyer, a review about particularly liked medical services on social networks or in a search engine can also be left by a completely real person who has existed in this world for several decades. Even by your boss or aunt, whom you haven’t seen since the Christmas before last. Is the use of such reviews in medical service advertising disseminated on social networks lawful? As in the other cases mentioned, so in this one – the review must be completely depersonalized. It cannot contain a name, surname, photo, or any details that would allow understanding that the review was written by a specific person. However, such a review must be truthful, cannot be incomplete and in no way can be misleading. Thus, although a direct prohibition on using patient reviews about medical services provided, left on social networks or in a search engine, is not enshrined in the regulation, the regulation of the medical advertising market allows using only an extremely small portion even of real persons’ reviews. Whether it is worth using, according to the interlocutor, should be decided in each specific case by the medical service provider itself.

„Going without saying, the issues discussed here are just the essence of the essence, non-compliance with which will almost
guaranteed result in sanctions from supervisory authorities. Every thought of the author of advertising and social network content is unique. Therefore, in each case, when preparing to release it to the public, but having
doubts about its lawfulness, it is recommended to consult with a lawyer,“ Aurimas Margiris Grinys advises in concluding the conversation.