By Rod Franklin, contributing writer

January 20, 2011 -- The expanding world of social media offers dentists some real advantages in terms of potential market reach, but it is also fraught with legal caveats, according to presenters at the Rocky Mountain Dental Convention in Denver last week.

Growing practices stand to benefit from the increased clout of real-time, multimedia venues such as Facebook, Twitter, and YouTube, advised a Boulder, CO, consultant who specializes in dental marketing. However, the users of such sites put themselves at peril if they fail to read and heed these companies' terms of service, said an attorney who also spoke at the convention.

What's more, increased exposure to actions stemming from privacy, defamation, copyright, and false advertising awaits those dental practices that fail to clarify or disclaim the statements made on their own websites, cautioned William Walters, an attorney with Kelly Garnsey Hubbell & Lass.

“People will want to see everything they can learn before they make a commitment.”
— Rita Zamora, social media consultant

Referral and word of mouth does not work like it used to work, according to social media consultant Rita Zamora. Why? "Because it has been supercharged by the more spontaneous viral communication dynamics of online media," she said. Tools such as Facebook business pages and patient testimonials published on YouTube allow for rich media promotion while helping to keep the user's attention focused.

According to the Online Publishers Association, 65% of Internet users are likely to watch a complete YouTube video promotion, while only 20% of those who read about a business or service tend to take in the whole message. YouTube is quickly developing a reputation as the "go-to" place for consumers in search of competent dental providers, Zamora noted.

"This is what we're going to start seeing at some point very, very soon for dental practices," she said. "People will want to see everything they can learn before they make a commitment."

Dental professionals who use the site need to pay special attention to who they feature in their promotional video, where the video is filmed, who produces it, and how it is shared or syndicated over the Internet, according Zamora. Many providers lean toward patient testimonials, while others favor YouTube videos that explore frequently asked questions about dental health. Still others arrange to be interviewed within professional studio settings, such as the San Diego-based Wellness Hour program with Randy Alvarez -- an option that can lend the dental provider a bit of "celebrity," she said.

YouTube is even more useful for those dental practices lucky enough to be indexed on Google pages with an accompanying thumbnail of the video in the search engine hit list. However, there appears to be no rhyme or reason for how or when the thumbnails appear, said Michael McClure, one of Zamora's associates.

Asked whether a dental practice that still lacks an Internet presence should begin with Twitter or Facebook, Zamora advised the latter, which she sees as the "big monster" of social networking.

Read the fine print

Walters sees Facebook as the "world's third largest country." A practicing attorney for 36 years, he acknowledged the potential selling power of Facebook, but warned against the legal snares that can trip up any dentist who fails to develop an understanding of issues related to privacy, slander, libel, copyright, or false advertising.

“It's all a one-sided equation.”
— William Walters, attorney, Kelly
     Garnsey Hubbell & Lass

Huge enterprises such as Facebook publish fine print online for a reason, Walters stressed. The rules of engagement in social media change frequently and are spelled out by federal law, as in the case of copyright, and also in state statutes, he explained.

"There is a seven-point provision in the Colorado Dental Practice Act about how you may or may not use a patient testimonial," he said. "These are not as long as the Facebook or YouTube provisions, but you need to be familiar with what the advertising rules and practices are in your state."

The other 800-pound gorilla in dental advertising regulation is the Federal Trade Commission (FTC), Walters noted. "The FTC has general jurisdiction over anything that is viewed as misleading or deceptive advertising," he warned. "They will go after little people as well as big people on occasion to sort of make their point."

For these reasons and others, Walters recommends that dental marketers read website terms and conditions, rights and responsibilities, or developer rules not just once, but periodically. Among the issues they need to understand are:

  • Services can be stopped at any time.
  • The website reserves the right to post advertising in proximity to the user's content.
  • Rights to copy and distribute an account holder's content elsewhere may be stipulated by agreements that govern how sites link to one another.
  • The account holder's content may be modified. "If you post something and they think it's just not quite right, they can actually go in and modify it a little bit," Walters said.

One of the most far-reaching legal considerations for today's user of social media has to do with blanket liability, he noted.

"In these agreements, you have all the liability. Facebook, YouTube, and Twitter don't," he said. "It's all a one-sided equation, and if for some reason you have problems and you think it was because of Facebook, you're not going to be able to bring a claim."

Dentists who set up their Facebook business pages so that others can post to them should make sure to publish a disclaimer and monitor the pages regularly, including those comments made by staff.

Pediatric dentists need to bear in mind another layer of regulation: the Children's Online Privacy Protection Act. This law controls statements from or about kids younger than age 13 and spells out the requirements for consent from parents or guardians.

Lastly, Walters cautioned, the Health Insurance Portability and Accountability Act (HIPAA) is designed to protect patient privacy, but may not provided enough coverage for some jurisdictions. He cited Massachusetts as an example of a state that has required patient privacy protection above and beyond the stipulations of HIPAA.

Current efforts by the National Standards for Protection of Personal Information are designed to give more rule-making authority to the FTC with regard to patient privacy, Walters added.

Copyright © 2011


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