When Telehealth Turns Patients Into Advertising Products -By Fransiscus Nanga Roka

No mere American privacy tussle, the Federal Trade Commission’s suit against Hims & Hers Health It raises a much more unsettling question: What does it mean for the patient when a digital healthcare company allegedly serves him or her at the same time as a medical consumer, subscription service and advertising data source?

The Federal Trade Commission (FTC) has sued Hims & Hers in the US District Court for the Northern District of California, along with Los Angeles County and Utah, after nearly three years of investigations that began in late 2020. The telehealth company allegedly revealed sensitive health info with ad platforms like Meta and Snap even though it assured users their information would be kept private, the regulators said. They further accuse Hims & Hers of misleading subscription, billing and cancellation practices.

The allegations are significant because these consumers, and what they said. Hims & Hers walks a line through some incredibly personal medicine: erectile dysfunction, hair loss, mental health and weight-loss therapy. The government claims that communications with its website and analytics tools sent private data to advertising firms.

Which elevates this case from a cookies conflict to a digital dignity of medicine clash.

It’s not the same thing as a consumer of sneakers, if a patieny looking for erectile-dysfunction treatment is a buyer. A mental health intake form is not the ordinary marketing data a person may generate. Health information could reveal vulnerabilities, phobias and illnesses that people might not even share with family or their employer.

But surveillance advertising has created a financial incentive to erase exactly that boundary.

The second charge makes the situation even more problematic. Regulators allege that consumers are billed for prescriptions shortly after filling in intake forms—without ever seeing a healthcare professional and may face hurdles trying to opt out of ongoing subscriptions.

This would demonstrate ultimately an inversion of healthcare: conversion before consultation, subscription without informed consent, retention despite patient autonomy.

Legally, the government is attacking this architecture through Section 5 of the FTC Act, which restricts unfair or deceptive commercial practices and federal protection on online negative-option transactions and consumer protection laws in California and Utah. But the risk is much larger than just one company. Section 5 has been used repeatedly by the FTC to hold companies that make privacy promises and fail to keep them. The market was aware of the threat immediately. Hims & Hers shares dropped about 12% as a result of the lawsuit on the day of the lawsuit, and Bloomberg reported a decline of more than 15%.

Hims & Hers vehemently denies any wrongdoing. The lawsuit, the company says, is “meritless,” and regulators ignored significant evidence it presented in its defense during the investigation, while vowing to fight back vigorously. Allegations are not adjudications of liability; and those are worthy of adjudication.

However, there is more to Washington than this defendant.

Senate: Step 1: Congress must create a nationwide privacy regime applying to health information that lies outside the traditional HIPAA relationships. Second, regulators should presumptively forbid the transmission of treatment-related behavioral data to ad networks as a part of any contract unless explicit and authentically informed consent is given separately. Third, telehealth providers should be subject to audits of pixels, SDKs and advertising APIs. Fourth, billing through subscriptions should be conditional on unequivocal opt-in consent, with opt-out no harder than opting in. In the end, penalties for egregious abuses of highly sensitive health information should be equal to a percentage of enterprise revenues (i.e., based on global revenue), and not fines easily treated by any corporation as another line item expense.

Telehealth can democratize medicine. Surveillance capitalism can corrupt it.

In short, the boundary needs to be absolute: once a user enters a digital clinic, they are patients and not products.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya and Managing Partner Law Firm Victorious Indonesia