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Paris Petranis Vanessa BaicPartner Senior Associate
IT’S ALL ABOUT THE MEMBERS
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Good news!§ Strong compliance culture§ Good at resolving issues quickly
Not-so-good news…§ Repeated member “issues”
WHAT IS TODAY ABOUT?§ Common member “issues”§ How to minimise the risk of common member “issues” occurring
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COMMON MEMBER “ISSUES”
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“What fine print?”
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“That’s not the same product!”
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“I thought I was covered!”
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“But Mandy told me …”
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“How does my dad know about my medical procedure?”
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“Why do I keep getting information about life insurance?”
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“Why do I keep getting information about life insurance?”
“How does my dad know about my medical procedure?”
“But Mandy told me…”
“I thought I was covered!”
“That’s not the same product!”
“What fine print?”
“WHAT FINE PRINT?”
§ Key principles:§ A person must not, in trade or commerce, engage in conduct that is misleading or is likely to mislead or deceive (section 18 ACL)
§ Every statement you make must be true and accurate in all material respects
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“WHAT FINE PRINT?”
§ Assessed by reference to the audience§ The astute and the gullible, the intelligent and not so intelligent, the well educated and the poorly educated
§ Tip – someone who has less than average intelligence but is not “extremely stupid or gullible”
§ Tip – Not someone who works for a private health insurer or has a keen interest in private health insurance
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“WHAT FINE PRINT?”
§ Overall impression in the key§ Ad will be judged by its first and overall impression§ Overall impression of an ad can be misleading even if it contains factually correct statements
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“WHAT FINE PRINT?”
§ Example:§ Fully covered for pregnancy … unless you are already pregnant!
§ No gaps / 100% cover
§ Mitigation actions:§ Disclaimers cannot be used to correct a misleading claim in the body of an ad or document
§ Fine print must not contradict main message or overall impression
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“WHAT FINE PRINT?”
§ Mitigation actions (cont.):§ Must be specific, clear and highly visible (size does matter)
§ Should be proximate to the material being disclaimed and presented at the same time as the claim§ On same page / webpage (not click through)§ Not at end of TV or radio ad when item being disclaimed was referenced at start of ad
§ Should only be used to provide additional information
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“WHAT FINE PRINT?”
§ Mitigation actions (cont.):§ “Conditions apply” may not be good enough
§ Unacceptable not to disclose relevant terms because of lack of space or because “disclaimers are ugly”
§ A television advertisement that on weekends local calls were free was found misleading notwithstanding a prompt which stated “Some exclusions apply” (TPC v Optus)
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“WHAT FINE PRINT?”
§ ACCC quotes§ “The inclusion of an asterisk or a fine print disclaimer does not remove the potential for a headline to be misleading.”
§ “Companies must ensure that they do not use misleading headlines about the price and other key terms and conditions of the services being offered. It is not enough for a company to try to correct a misleading headline using fine print text.”
§ “The advertising practice of fine-print qualification is one the ACCC is tired of correcting.”
§ “The ACCC will take an increasingly aggressive approach to send the message that this kind of misleading advertising will not be tolerated.”
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END OF SECTION
“THAT’S NOT THE SAME PRODUCT!”
§ Key principles:§ A person must not, in trade or commerce, engage in conduct that is misleading or is likely to mislead or deceive (section 18 ACL)
§ Every statement you make must be true and accurate in all material respects
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“THAT’S NOT THE SAME PRODUCT!”
§ Assessed by reference to the audience§ The astute and the gullible, the intelligent and not so intelligent, the well educated and the poorly educated
§ Tip – someone who has less than average intelligence but is not “extremely stupid or gullible”
§ Tip – Not someone who works for a private health insurer or has a keen interest in private health insurance
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“THAT’S NOT THE SAME PRODUCT!”
§ Overall impression in the key§ Ad will be judged by its first and overall impression§ Overall impression of an ad can be misleading even if it contains factually correct statements
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“THAT’S NOT THE SAME PRODUCT!”
§ Comparisons with competitors are inherently risky!
§ Examples: § Duracell bunny - Up to “3 times longer”§ Telstra v Optus
§ Mitigation actions:§ When comparing products in ads, your product must be compared with your competitor’s most directly comparable product, i.e. “like for like”
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“THAT’S NOT THE SAME PRODUCT!”
§ Mitigation actions (cont.):§ All main assumptions and factual matters relating to the comparison must be disclosed
§ Ensure there are no unintentional comparisons or inappropriate implications§ “only”§ “better/best”
§ Invite the consumer to make the comparison§ “Does your health cover offer all of this?”
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END OF SECTION
“BUT MANDY TOLD ME…”
§ Key principles:§ A person must not, in trade or commerce, engage in conduct that is misleading or is likely to mislead or deceive (section 18 ACL)
§ Every statement you make must be true and accurate in all material respects
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“BUT MANDY TOLD ME…”
§ Assessed by reference to the audience§ The astute and the gullible, the intelligent and not so intelligent, the well educated and the poorly educated
§ Tip – someone who has less than average intelligence but is not “extremely stupid or gullible”
§ Tip – Not someone who works for a private health insurer or has a keen interest in private health insurance
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“BUT MANDY TOLD ME…”
§ Silence itself may be misleading or deceptive§ Leaving out (or hiding) important information§ Not correcting a misunderstanding
§ Intent is irrelevant § All that is relevant is whether, tested objectively, the conduct is misleading or deceptive or likely to be so
§ Overall impression is the key
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“BUT MANDY TOLD ME…”
§ Hypothetical example:§ A PHI employee sells a PHI policy to a pregnant lady (who makes it clear her main concern is maternity care) without telling her there is a 12 month waiting period for obstetrics
§ Mitigation actions:§ Record keeping
§ Record phone calls § Keep accurate notes of conversations
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“BUT MANDY TOLD ME…”
§ Mitigation actions:§ Consistent delivery of message
§ Improve training§ Provide guidance notes
§ Provide broad advice on what the member needs to know
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END OF SECTION
“I THOUGHT I WAS COVERED!”
§ Consumers do not understand PHI
§ Key principles:§ A person must not, in trade or commerce, engage in conduct that is misleading or is likely to mislead or deceive (section 18 ACL)
§ Every statement you make must be true and accurate in all material respects
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“I THOUGHT I WAS COVERED!”
§ Assessed by reference to the audience§ The astute and the gullible, the intelligent and not so intelligent, the well educated and the poorly educated
§ Tip – someone who has less than average intelligence but is not “extremely stupid or gullible”
§ Tip – Not someone who works for a private health insurer or has a keen interest in private health insurance
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“I THOUGHT I WAS COVERED!”
§ Silence itself may be misleading or deceptive§ Leaving out (or hiding) important information§ Not correcting a misunderstanding
§ Intent is irrelevant § All that is relevant is whether, tested objectively, the conduct is misleading or deceptive or likely to be so
§ Overall impression is the key
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“I THOUGHT I WAS COVERED!”
§ Mitigation actions:§ Ensure product information is clear and well presented§ Emphasise commonly misunderstood concepts
§ Excluded/restricted services§ Likely gaps/out-of-pockets and medical gaps§ Public vs private hospital coverage§ Participating hospitals/preferred providers
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“I THOUGHT I WAS COVERED!”
§ Mitigation actions:§ Don’t hide the nasty stuff!§ Provide clear product information prior to joining or, where not possible, during the cooling-off period
§ Ensure frontline staff properly explain products§ Improve training§ Provide guidance notes§ Provide broad advice on what the member needs to know
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“I THOUGHT I WAS COVERED!”
§ Mitigation actions:§ Encourage members to regularly review their policies§ Clearly communicate policy changes
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END OF SECTION
“HOW DOES MY DAD KNOW ABOUT MY MEDICAL PROCEDURE?”
§ Key principles:§ Do not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection without consent unless:§ The secondary purpose is related to the primary purpose of collection (directly related in the case of sensitive information)
§ The individual would reasonably expect you to use or disclose the information for the secondary purpose
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“HOW DOES MY DAD KNOW ABOUT MY MEDICAL PROCEDURE?”
§ Are you properly providing collection statements and obtaining necessary consents?
§ Mitigation actions:§ Do not disclose sensitive information unless you need to – do not default to what is simplest for the PHI
§ If you need to disclose sensitive information, obtain consent (unless the disclosure is for a directly related secondary purpose and reasonably expected)
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“HOW DOES MY DAD KNOW ABOUT MY MEDICAL PROCEDURE?”
§ Mitigation actions:§ Comprehensive collection statement § Ensure all members (not just the contributor) view (and consent to) the handling of their personal/sensitive information in accordance with the collection statement
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END OF SECTION
“WHY DO I KEEP GETTING INFORMATION ABOUT LIFE INSURANCE?”
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Direct marketing is prohibited
• information collected from individual
• reasonably expect use or disclosure
• opt out options
• has not opted out
• information collected from individual
• not reasonably expect use or disclosure
• impracticable to obtain consent
• opt out options• prominent statement or draw attention to opt out
• has not opted out
• information collected from third party
• consent or impracticable to obtain consent
• opt out options
• prominent statement or draw attention to opt out
• has not opted out
unless
APP 7.3 APP 7.3APP 7.2
Are you complying Privacy Act requirements?
“WHY DO I KEEP GETTING INFORMATION ABOUT LIFE INSURANCE?”
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§ You must have consent to use sensitive information for direct marketing§ eg. direct mail out regarding an offer from a preferred optical provider for members who are yet to use their optical benefits
“WHY DO I KEEP GETTING INFORMATION ABOUT LIFE INSURANCE?”
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§ Are you complying with Spam Act requirements?§ Consent – express and inferred§ Accurate sender information§ Functional unsubscribe facility
§ clearly presented and easy to use§ implements an unsubscribe request within 5 working days after the unsubscribe message was sent
“WHY DO I KEEP GETTING INFORMATION ABOUT LIFE INSURANCE?”
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§ Mitigation actions:§ Obtain consent of all members to receive direct marketing (including electronically)
§ Ensure that the consent is sufficiently broad to cover marketing beyond just PHI
END OF SECTION
QUESTIONS?
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Further information
Paris Petranis03 9205 [email protected]
Vanessa Baic03 9205 [email protected]
