Gregory Hong is an IPilogue Writer and a 1L JD candidate at Osgoode Hall Law School
BetterHelp is a mental health platform that provides online mental health services, describing themselves as “the largest therapy platform in the world. We change the way people approach their mental health and help them tackle life’s challenges by providing accessible and affordable care. With BetterHelp, you can message a professional therapist anytime, anywhere”. Their mission statement reads: “Making professional therapy accessible, affordable, and convenient — so anyone who struggles with life's challenges can get help, anytime and anywhere”. Their primary business is online counseling and therapy provided online through web-based interaction and phone/text communication with professional counselors.
Privacy Misrepresentation
According to the Federal Trade Commission (FTC) release, BetterHelp requires a questionnaire that asks for sensitive mental health information – “such as whether they have experienced depression or suicidal thoughts and are on any medications” – along with personal information. The complaint details BetterHelp’s dubious privacy practices, many of which display an egregious lack of concern for privacy interests. The complaint also details the privacy representations made by BetterHelp, some of which have been altered over time. An example of these changes was seen in the intake questionnaire, where a question asking “Are you currently taking any medication?” included a privacy statement that went through a few iterations (emphasis on alteration added in the complaint):
Up to Dec 2020: “Rest assured—any information provided in this questionnaire will stay private between you and your counselor.”
Dec 2020: “Rest assured—this information will stay private between you and your counselor”
Jan 2021: “Rest assured—your health information will stay private between you and your counselor”
Oct 2021: The statement was removed altogether
Revealing Private Information to Advertisers
The FTC release indicates that BetterHelp “did not obtain consumers’ affirmative express consent before disclosing their health data” and “failed to place any limits on how third parties could use consumers’ health information—allowing Facebook and other third parties to use that information for their own internal purposes, including for research and development or to improve advertising”. According to the complaint, BetterHelp used and revealed consumers’ email addresses, IP addresses, and health questionnaire information to Facebook, Snapchat, Criteo, and Pinterest for advertising purposes”, including “identify[ing] similar consumers and target[ing] them with advertisements for BetterHelp’s counseling service.”
The Punishment
The FTC has issued a proposed order (a legal document that outlines the terms and conditions for resolving a complaint or an investigation related to unfair or deceptive business practices) requiring that BetterHelp return funds – amounting to $7.8 million – to customers whose health data was compromised. The proposed order also bans BetterHelp from disclosing health information for advertising, prohibits misrepresenting its sharing practices and requires several changes to company practices regarding health and personal data. BetterHelp writes in their response to the FTC settlement that this settlement is “no admission of wrongdoing” and that their “industry-standard practice is routinely used by some of the largest health providers, health systems, and healthcare brands”. The Associated Press reporting on this news says that this enforcement action is not the first of its kind, as it follows the FTC fining GoodRx for unauthorized sharing of health data, and that “the FTC has made it clear of its intent to crack down on the trafficking in sensitive health data by businesses not strictly classified as health care providers and thus not covered by HIPAA, the federal privacy rules that govern the health care industry”. Hopefully, this sets a precedent for more stringent enforcement of good privacy practices, particularly regarding the sale of personal and health information.