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QLD Medical Advice Affiliate Marketing Website - How To Protect From Liability?

Discussion in 'Commercial Law Forum' started by Ben Stenhouse, 24 August 2014.

  1. Ben Stenhouse

    Ben Stenhouse Member

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    I want to make a website similar to a home remedies sort of website, except, for example, say that the reader is looking for toothpaste to make their teeth less sensitive. I want to provide a link to a company which sells that toothpaste, are there any legalities associated with this affiliate marketing?

    I am scared that I may provide information and a link to something which the reader may use, but if it does not work, they might sue me under commercial law. Imagine I provide information and a link to use a certain cream, they use it, it burns there skin due to an allergic reaction, and they sue me! Am I able to provide a disclaimer asking the reader to first check with a doctor or that the content on the website is for information purposes only and not providing a substitute for professional help such as WebMD.com does?

    Thank you very much for reading my problem! I look forward to hearing your answers!
     
  2. John R

    John R Well-Known Member

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    Hi Ben,
    With any new venture, it is prudent to understand your risk profile and ensure that it aligns with your "appetite" for risk.
    Looking at the websites that you have referenced, it appears that both websites have taken various steps to mitigate/reduce their risk profile from being sued for negligence, etc. by:
    1. implementing clear warnings/disclaimers;
    2. being clear about the nature of their website. For example, WebMD's tagline is "better information, better health" and their disclaimer states "WebMD does not provide medical advice, diagnosis or treatment";
    3. assumption - drafting a Website Disclaimer, Terms of Use and Privacy Policy that is tailored to their business;
    4. assumption - setting up a corporate structure (such as incorporating a company instead of operating as a sole trader, etc.); and
    5. assumption - taking out an appropriate insurance policy to further mitigate the risk of the individual founders/directors being sued.
    Hope this helps. Please keep us updated with your progress.
     
    Worldly1 and Rod like this.
  3. Tim W

    Tim W Lawyer

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    1. It would help if you were more candid about what you are proposing.

    2. If you are that worried about being sued, then don't do it.
      Especially if you can't afford the relevant insurance,
      which I suspect you can't, or you would be consulting
      specialist lawyers as a paying client.

    3. If you are not an Australian registered Medical Practitioner, then don't give medical advice.
      Or anything that Joe Average could think was medical advice, whether you mean it that way or not.
      And if you don't know what is and isn't, then you shouldn't be doing it.

    4. If you are not an Australian registered Pharmacist, then don't give the kind of advice that a Pharmacist would.
      Or anything that Joe Average could think was the kind of advice that a Pharmacist would give,
      whether you mean it that way or not.
      And if you don't know what is and isn't, then you shouldn't be doing it.
      And that includes recommendations about (or even suggestions of) therapeutic products (even OTCs).

    5. Your concerns about product liability are valid.
      If you are a mere index, and not the seller, then you are less exposed.
      If you are a third party marketplace (like eBay) then you can be less exposed.
      In any other circumstance, you are a seller to which the Australian Consumer Law applies.

    6. I am not certain that disclaimers on websites of the kind you propose
      are worth anything.
     

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