Testimonials: Understand the requirements

The public is entitled to accurate and honest information about healthcare services. Any person or business that advertises a regulated health service¹ has an obligation to make sure their advertising complies with the National Law².

What is the law on testimonials in advertising?

The National Law does not allow the use of testimonials or purported testimonials to advertise regulated health services or a business that provides a regulated health service.

The risk of harm posed by using testimonials in advertising is greatest where it:

• creates an unreasonable expectation of beneficial treatment
• encourages the unnecessary use of health services, and/or
• is false, misleading or deceptive or likely to be misleading or deceptive, including testimonials that are:
  • selectively published or edited, or
  • fake.

What is a testimonial?

The advertising guidelines define a testimonial as recommendations or positive statements about the clinical aspects of a regulated health service used in advertising. Examples include patient stories, patient experiences or success stories.

A purported testimonial is a statement or representation that appears to be a testimonial. Examples of purported testimonials are fake testimonials.

Not all reviews or positive comments made about a regulated health service are considered testimonials. For example, comments about customer service or communication style that do not include a reference to clinical aspects are not considered testimonials for the purposes of the National Law.

What are clinical aspects of a regulated health service?

A clinical aspect exists if one of the following is expressed:

• Symptom – the specific symptom or the reason for seeking treatment.
• Diagnosis or treatment – the specific diagnosis or treatment provided by the practitioner.
• Outcome – the specific outcome or the skills or experience of the practitioner either directly or via comparison. 

Comments about clinical aspects of a regulated health service are considered a testimonial and cannot be used in advertising. 

Comments that are not about clinical aspects (e.g. comments about customer service or communication style) are not considered testimonials and may be used in advertising. 

Does the law about testimonials apply to social media?

If the social media page is used to promote a regulated health service, such as a clinic’s Facebook page, it is considered advertising and must not include testimonials or purported testimonials. 

Not all social media sites allow for editing or removal of testimonials. However, the clinic business owner or practitioner (whoever has control over the social media) is still responsible for ensuring compliance with the prohibition on testimonials. This may be achieved by disabling the reviews/testimonials functions.

Patient reviews 

Some patients use online reviews to make decisions about their choice of practitioner and treatment options. Reviews can appear on: business websites, a service directory or booking site, social media, discussion forums, a search engine or a review platform.

The prohibition on using testimonials to advertise regulated health services does not affect:

• patients sharing information, expressing their views online or posting reviews on review platforms
• how members of the public can interact with review sites or discussion forums, or
• individuals or businesses that do not advertise a regulated health service.

The prohibition on the use of testimonials only applies when:

• an advertiser makes use of testimonials (as defined above) to advertise a regulated health service, and/or 
• a person or a business advertises in a way that makes use of the reviews/testimonials to promote the service.

The flowchart below helps identify whether a review is considered a testimonial used in advertising and is in breach of the requirements of the National Law.

When reviews about a regulated health service are in breach of the National Law

• Is the review about a regulated health service?
• No
• The review is not covered by s.133 of the National Law.
• Yes
• Is the review used in advertising?
• No
• The review is not covered by s.133 of the National Law.
  
  However, consider if the review is relevant to other codes, guidelines, standards or legislation
• Yes
• Does it refer to a clinical aspect of a regulated health service?
• No
• The review is not covered by s.133 of the National Law.
  
  However, consider if the review is relevant to other codes, guidelines, standards or legislation
• Yes
• Not permitted in advertising.

Why are testimonials prohibited in advertising?

Testimonials are prohibited in advertising a regulated health service because:

• they are often personal opinions and may have no objective basis for recommending a registered health practitioner or health service
• the outcomes experienced by one patient do not necessarily reflect the outcome, or likely outcome available to all patients  
• they can be misleading as they are not usually a balanced source of information (they often include a selection of positive comments about experiences and do not tell the whole story), and/or
• the public may not have expert knowledge to asses if the information is accurate.

Advertisers’ responsibilities in relation to testimonials

Advertisers must ensure that they do not use testimonials to advertise a regulated health service.

When are comments about a regulated health service the responsibility of the advertiser?

The advertiser, that is, whoever has control over the advertising, is responsible for compliance with the prohibition on the use of testimonials in advertising.

An advertiser has control of the advertising if:

• they publish or authorise content or direct someone to publish or draft content (including a third party, staff member or marketing agency), or
• there is a mechanism for the advertiser to modify or remove content published by an unrelated publisher.

Advertisers are responsible for their advertising, so they need to check any content produced by others on their behalf.

Depending on the structure of a practice, the principal practitioner, practice owner or director (in the case of a group practice) may be responsible for the practice’s advertising. Advertisers do not have to remove or try to remove a review on a website or in social media over which they do not have control.

Advertisers should take care if they choose to engage with reviews on third-party websites as this may be considered using a testimonial to advertise a regulated health service.

The examples below help to explain who is responsible for ensuring compliance with the advertising requirements of the National Law in relation to reviews from the public. Where the review appears and whether it is being used in advertising (as defined in these guidelines) are important for determining who is responsible for ensuring compliance.

Selectively editing reviews or testimonials may break the law

Selectively editing reviews or testimonials has the potential to be false, misleading or deceptive and breach the advertising requirements of the National Law. For example, it is misleading to:

• edit a review that is negative to make it positive, as this falsely presents the feedback
• edit a review that has a mix of negative and positive comments so that the published review only has positive comments, as this falsely implies that the reviewer only had positive feedback, or
• edit a review so that it no longer accurately reflects all the reviewer’s feedback and presents an inaccurate or false impression of the reviewer’s views.

Only publishing complete and unedited reviews that are not testimonials will help to avoid breaching the National Law requirements. 

Reviews (i.e. feedback about healthcare experiences that does not refer to clinical aspects of a regulated health service) are allowed in advertising. However, if reviews are edited, either by removing part of the review or by selectively including/excluding whole reviews, then publishing reviews has the potential to be misleading and breach the advertising requirements of the National Law. 

1 Means a service provided by, or usually provided by, a health practitioner (as defined in the National Law).

2 The Health Practitioner Regulation National Law, as in force in each state and territory (the National Law).