On March 2, 2023, the Federal Commerce Fee (“FTC”) introduced an enforcement motion towards California-based on-line counseling service BetterHelp, Inc. (“BetterHelp”) for allegedly sharing customers’ well being info, together with delicate details about psychological well being challenges, for promoting functions in violation of Part 5 of the FTC Act.

This newest enforcement motion comes only one month after the FTC introduced an enforcement motion towards GoodRx for allegedly violating Part 5 of the FTC Act and the Well being Breach Notification Rule (“HBNR”). The place the GoodRx enforcement motion marked the primary time the FTC enforced the HBNR, the BetterHelp enforcement motion equally units a brand new precedent for the FTC: That is the primary FTC enforcement motion returning funds to customers whose well being info was compromised by BetterHelp’s alleged misdeeds. The proposed order (“Proposed Order”) additionally units out in depth necessities to ban BetterHelp from disclosing well being info for promoting and misrepresenting its info sharing practices. The GoodRx and BetterHelp enforcement actions look like half of a bigger effort by the FTC to watch the practices of internet sites, apps, and linked gadgets that seize shopper’s delicate well being info.

The Criticism

In keeping with the Criticism, BetterHelp gives on-line counseling companies by matching customers with BetterHelp therapists and facilitating counseling through BetterHelp’s varied web sites and apps. BetterHelp additionally gives specialised variations of its counseling companies for folks of the Christian religion, members of the LGBTQ group, and youngsters. To join BetterHelp’s companies, customers should fill out a questionnaire that asks delicate psychological well being questions, similar to whether or not they have skilled melancholy or suicidal ideas, have beforehand been in counseling, or take any medicines. Shoppers additionally present their title, e mail handle, delivery date, and different private info. In its press launch on the enforcement motion, FTC suggests that customers are “pushed’ to supply this info by “repeatedly displaying them privateness misrepresentations and nudging them with unavoidable prompts to join its counseling service.” Shoppers are then matched with a BetterHelp counselor and pay between $60 and $90 per week for counseling.

The Criticism alleges that in recognition of the quantity of delicate well being info customers present, BetterHelp “repeatedly promised” to maintain this info “personal and use it just for non-advertising functions similar to to facilitate customers’ remedy.” Nonetheless, over a interval of seven years from 2013 by 2020, BetterHelp purportedly “regularly broke these privateness guarantees, monetizing customers’ well being info to focus on them and others with commercials” for BetterHelp’s companies. For instance, BetterHelp allegedly shared its customers’ e mail addresses and the very fact they had been in counseling with Fb, which in flip recognized related customers and focused them with BetterHelp commercials. BetterHelp additionally allegedly shared its customers’ info with different third-party promoting platforms, similar to Pinterest, Snapchat, and Criteo. These promoting efforts reportedly introduced in “tens of hundreds of recent paying customers, and thousands and thousands of {dollars} in income” to BetterHelp. BetterHelp additionally allowed these third-party firms to make use of BetterHelp customers’ info for their very own analysis and product improvement, additional proof that BetterHelp didn’t contractually restrict how third events may use customers’ well being info.

The Criticism additionally alleges that BetterHelp “didn’t make use of cheap measures to safeguard the well being info it collected from customers.” BetterHelp is accused of not coaching its workers on the best way to correctly shield consumer info when utilizing it for promoting functions and never overseeing its workers’s use of consumer info.

The Proposed Order

The Proposed Order imposes a $7.8 million superb on BetterHelp, to be paid right into a fund, to refund customers who signed up and paid for BetterHelp’s counseling companies between August 1, 2017, and December 31, 2020. The FTC stories that that is the primary enforcement motion searching for to return funds to customers whose well being info was compromised. Along with the financial penalty, the Proposed Order prohibits BetterHelp from sharing customers’ “individually identifiable info referring to the previous, current, or future bodily or psychological well being or situation(s)” with third-parties for promoting or re-targeting earlier customers. Additional, the Proposed Order requires BetterHelp to:

• Receive customers’ affirmative categorical consent earlier than disclosing private info to third-parties for any function;
• Set up, implement, and preserve a complete privateness program that features sturdy safeguards to guard shopper info;
• Direct third events to delete the patron well being info and different private info that BetterHelp revealed to them; and
• Restrict how lengthy BetterHelp retains private and well being info in accordance to an information retention schedule. 

Takeaways

Digital well being firms and different firms that function web sites, apps, or linked gadgets that seize shopper’s delicate well being info ought to take heed of the FTC’s enforcement actions towards each BetterHelp and GoodRx. As evidenced by the BetterHelp enforcement motion, firms should safeguard consumer info and never endeavor to leverage this info for promoting alternatives in violation of guarantees made to customers. The BetterHelp enforcement motion additionally underscores the necessity for acceptable consumer notification mechanisms to acquire consumer consent earlier than disclosing their info to 3rd events. Additional, firms ought to recall from the GoodRx enforcement motion that even firms that aren’t topic to the necessities of the Well being Insurance coverage Portability and Accountability Act may nonetheless be topic to the HBNR. Whereas the FTC didn’t allege violations of the HBNR by BetterHelp, additional enforcement motion may nonetheless be looming.

The BetterHelp enforcement motion is particularly noteworthy as it’s the first time the FTC has endeavored to redress shopper accidents for these whose delicate well being info was inappropriately used and disclosed. That is the FTC’s second “first” within the space of well being info enforcement within the span of only one month, so firms must be looking out for extra to come back.

For extra info or recommendation concerning this enforcement motion or information privateness points normally, please contact the skilled(s) listed under or your common Crowell & Moring contact.