Alain Montgomery, JD, Staff Attorney
The Therapist
September/October 2015
Reviewed November 2017 by Ann Tran-Lien (Managing Director, Legal Affairs)
 

Social media tools and Internet resources allow us to share information about ourselves, endorse the services and products we love, and compliment or critique the providers from whom we receive services. Whether you are a master at using online tools and social networking to market yourself and build your business, or whether you use these tools more casually, you may encounter a situation in your professional role which implicates certain legal and ethical standards unique to you as a Marriage and Family Therapist. For example, a patient may post a review of you and your services on a consumer review website; or, a patient may ask you to be a part of his or her social media network. This article discusses the possible legal and ethical issues related to social media as well as the policies related to using CAMFT social media.

Consumer Review Websites

Professional websites and consumer review sites allow consumers to be informed as much as possible about where and from whom to receive services, including mental health care services. In this digital age, information spreads like wildfire. As such, one’s reputation is important to protect and defend. As a service provider you are not immune from being the subject of a public review or negative critique on a consumer review website such as Yelp or Angie’s List; or, on other social media venues such as LinkedIn, Facebook or Twitter. In these situations, a business owner might use the opportunity to rebut the statement or allegation in a manner which reinforces the quality and caliber of the service provided; or, might take the opportunity to open a public dialogue directly with the consumer in an effort to resolve the consumer’s grievance. However, as a Marriage and Family Therapist, your options to respond publicly are more limited than other professionals who are not bound by laws and ethics which require you to safeguard the confidentiality, privacy, and protected health information of your patients.

While there are strategies and techniques to get damaging on-line content removed from a website, blog, or search engine, it is very difficult to compel removal due to the protections afforded to on-line service providers under the Communication Decency Act (“CDA”).

The CDA immunizes online service providers for the content posted by third parties. Under Section 230 of the CDA, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."¹ As such, online intermediaries who host or republish speech are protected against a range of laws that could be used to hold them legally responsible for what third parties say and do. The protected intermediaries include regular Internet Service Providers (ISPs),"interactive computer service providers" (any online service that publishes third-party content), and bloggers who act as intermediaries by hosting comments on their blogs. Bloggers are not liable for comments left by readers, the work of guest bloggers, tips sent via email, or information received through RSS feeds.

Laws and Ethics Re: Confidentiality

Under California’s Confidentiality of Medical Information Act (CIMA), mental health care professionals are obligated to protect individually identifiable information obtained from a patient. CIMA prohibits mental health professionals from disclosing patient information except under certain circumstances.² For further reading on the laws pertaining to confidentiality please refer to the article titled, “Confidentiality and Its Exceptions,” by former CAMFT Staff Attorney, Bonnie Benitez. Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a federal law, certain providers are obligated to safeguard a patient’s protected health information.³ To learn more about protected health information under HIPAA, please refer to the article titled, “How to Comply With the Privacy Rule” by CAMFT Staff Attorney, Dave Jensen. Further, under the Marriage and Family Therapy licensing statute, the BBS may take action against a therapist for non-permitted disclosures of confidential information as a form of unprofessional conduct.⁴ Pursuant to Section 2.1 of the CAMFT Code of Ethics, marriage and family therapists refrain from disclosing patient confidences, including the names or identities of their patients except as mandated or permitted by law.

Thus, Marriage and Family Therapists cannot even acknowledge, confirm, or deny whether an individual is, or has been, a patient when there is no legal exception to confidentiality. This creates a dilemma for a therapist who is the subject of a patient’s negative online review. A patient’s public acknowledgment of the therapeutic relationship does not give the therapist the right to publically respond in order to defend against the claim; to do so would be a direct acknowledgement of the therapeutic relationship and a breach of patient confidentiality. However, there are viable options a therapist may utilize to resolve the situation.

Negative Reviews

Ultimately, the goal is to obtain removal of the negative comment. If a disgruntled patient writes a negative review and identifies him or herself as the poster, one option is to reach out to the patient directly – outside of the online platform – to find out the reason for the upset and try to resolve the matter personally. If the patient’s concerns can be accommodated, the therapist may kindly ask the patient to remove the negative post.

Bear in mind, the option of working directly with the patient to resolve the issue may not be a viable option in some instances. Perhaps the individual who wrote the post failed to identify him or herself by name and posted the comment anonymously; or, the patient’s capability to respond and communicate in a rational and productive manner may be compromised if the patient suffers from a cognitive impairment or personality disorder.

Based on the nature of the post, the website may actually remove the comment if it violates the website’s content guidelines or review guidelines. For example, Yelp’s “Review Guidelines” caution users of the following: “Accuracy: Make sure your review is factually correct. Feel free to air your opinions, but don't exaggerate or misrepresent your experience.”⁶ Thus, informing the website through the website’s online support center of the content which violates the website’s own guidelines may result in removal of the negative content.

Bury the Negative Content with Positive Content

One method utilized by professional reputation management companies to restore an individual’s online reputation is to bury the negative online content with positive content. Be aware of the limitations on the ways in which a therapist can generate positive content. Ethically, a marriage and family therapist cannot solicit testimonials or endorsements from patients. Section, 10.6 of the CAMFT Code of Ethics expressly prohibits the solicitation of testimonials from clients. However, nothing prohibits a marriage and family therapist from soliciting endorsements from professional colleagues who can attest to the therapist’s expertise, skill level, and professionalism. Remember, a therapist must never ask a current patient to write and endorsement or positive review in order to bolster his or her online reputation.

While Section 10.6 does not expressly prohibit asking a former patient for a testimonial or endorsement, the underlying reasons for the prohibition against solicitation in generally apply equally to former patients. Soliciting a former patient for a testimonial could result in the patient feeling unduly pressured or obligated to confer a benefit on the therapist for the services rendered. Also, there is a possibility that the former patient may wish to resume a therapeutic relationship with the therapist to whom the testimonial or endorsement was provided. The fact that the former patient provided a positive review for the therapist’s benefit could undermine the integrity of the therapeutic relationship, impair professional judgment, and implicate issues pertaining to confidentiality.

Encourage Direct Communication

Encouraging direct communication is one way to dissuade a current or former patient from using a public online forum to comment on or critique the services received. As part of a professional profile on a consumer review website, the profile can expressly state that anyone with concerns, questions, comments, or disputes about the services provided should initiate communication privately to discuss the matter. Also, genuinely convey a commitment and willingness to create understanding and resolve issues.

While it is confounding, hurtful, and distressing to be the subject of a negative online review the above courses of action may be a viable options to get the negative comment removed.

Defamatory Statements

If the comment is defamatory, the website on which the statement is published may remove the statement as per the website’s own terms of use or terms of service. Generally, a defamatory statement is a derogatory false statement of fact which damages someone’s reputation. Written defamation is referred to as “libel.”⁸ It is important to distinguish a statement of fact from opinion because opinions are rarely actionable.

Most websites will remove a negative comment or review if it is false, defamatory, a form of impersonation, cyber-bullying, threat of violence, or other illegal content. For example, Yelp’s terms of service state the following:

“You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory . . . contains material that is unlawful . . . . . you agree not to, and will not assist, encourage, or enable others to use the Site to violate our Content Guidelines, for example, by writing a fake or defamatory review . . . .”⁹

If you are the subject of an online review and are concerned whether the statement is defamatory it is best to consult with a litigation attorney who specializes in defamation or online reputation management to help make that determination and discuss other potential remedies. If the statement is defamatory, the website may be compelled to remove the post. Informing the website’s online support center of defamatory content which violates the website’s terms of service, or a user membership agreement, may result in removal of the defamatory comment.

Social Media

Social media websites such as Twitter, LinkedIn and Facebook can be used as marketing tools for promoting professional services. At the same time these interactive platforms are used for social and professional networking. Communication with patients on social media can result in a breach of patient confidentiality, privacy, and protected health information. Also, a connection with a patient on social media can be interpreted as – or lead to – a dual relationship regardless of how superficial or benign the connection. Inform a patient at the outset of services – through written office polices or informed consent – that you do not engage in social networking with patients. This serves as a way to discourage a patient from attempting to interact with you through online social media.

Also, if you have a professional website or social media page used solely for marketing purposes consider the use of a disclaimer to describe the scope and purpose of the website. For example, you can state that the materials on the webpage are for marketing and informational purposes only; additionally, you can instruct viewers to contact you directly if they have questions, comments, or concerns. If you post articles or blog entries on the website or social media page consider disabling any software feature that allows viewers to comment. This prevents the ability of a prospective, past, or current patient to initiate a dialogue or ask a question of a therapeutic nature and minimizes the risk of engaging in a therapeutic conversation. Further, be familiar with the websites privacy settings which allow you to control what information is viewable and by whom. For more information about psychotherapists and social media, please see Michael Griffin’s article titled, “Psychotherapists, Social Networking, and Self-Disclosure on the Internet.”

CAMFT Social Media Policies

CAMFT members have access to forums, listservs, message boards, and/or news groups on the CAMFT website. For example, the “CAMFT Community” is an online peer discussion group through which members can network and exchange information for the purposes of professional development. While CAMFT does not exercise editorial control over the content, members are apprised of CAMFT’s right to take any appropriate action if an inappropriate posting is brought to CAMFT’s attention. CAMFT has the right to terminate access to any user who does not abide by CAMFT Community rules or guidelines.

According to “CAMFT Community Rules” examples of inappropriate content include the following:

“All defamatory, abusive, profane, threatening, offensive, or illegal materials are strictly prohibited. Do not post anything in a Community message that you would not want the world to see or that you would not want anyone to know came from you.”¹⁰

Thus, CAMFT has the ability to remove defamatory and other disparaging content from the “CAMFT Community” forum.

Conclusion

Dealing with issues around social media can be overwhelming. Some issues, like being publically critiqued by a client or even defamed are difficult to navigate. Others, like being asked by a client to connect through social media can be dealt with more easily. In either situation, your legal and ethical obligation to safeguard patient information should serve as a compass to hold you in good stead. Also, become knowledgeable about any social media website or blog hosting website you use for marketing purposes. Take your time to understand how things work and be patient with yourself as you do. Your familiarity with social media tools will empower you and give you peace of mind about having an online presence.

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¹ 47 U.S.C. § 230
² Cal Civ Code §56.10
³ 45 C.F.R. §§ 160.102
⁴ Cal-Bus & Prof Code §4982(m)
⁵ CAMFT Code of Ethics, Section 2.1 DISCLOSURES OF CONFIDENTIAL INFORMATION: Marriage and family therapists do not disclose patient confidences, including the names or identities of their patients, to anyone except a) as mandated by law b) permitted by law c) when the marriage and family therapist is a defendant in a civil, criminal, or disciplinary action arising from the therapy (in which case patient confidences may only be disclosed in the course of that action), or d) if there is an authorization previously obtained in writing, and then such information may only be revealed in accordance with the terms of the authorization.
⁶ Yelp, Inc. “Review Guidelines,” http://www.yelp.com/ Retrieved on July 10, 2015.
⁷ CAMFT Code of Ethics, Section 10.6 SOLICITATION OF TESTIMONIALS: Marriage and family therapists do not solicit testimonials from patients.
⁸ Restatement (Second) of Torts §558 and Cal Civ Code §§ 44, 45, 45(a), 46
⁹ Yelp, Inc. “Terms of Service,” http://www.yelp.com/ Retrieved on July 10, 2015
¹⁰ CAMFT. CAMFT Community Terms of Use, “Community Rules.”