Education and debate: Regulating health information: a US perspective * Commentary: Legal aspects of health on the internet: a European perspective

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Abstract
Regulating the quality of online health informationConcerns about widespread inaccuracies in online health information are speculative and intuitive rather than based on robust research. Berland's quality assessments, at least for English language sites and well educated users, suggest the picture is not so gloomy as critics expected.1Public law regulation of health information may conflict with US guarantees of free speech, and differences of opinion among medical professionals make the broad regulation of health advice difficult. Consequently, intervention through public law is reserved for obviously dangerous health content where government agencies can apply traditional consumer protection, drug regulation, and fraud powers, as with the Federal Trade Commission's “Operation Cure.All.”2Arguments about freedom of speech can be used to defend private legal actions against web sites offering medical advice, and precedents from actions against publishers of “advice” or “how to” books show that such claims are hard to win.3 Case by case, retrospective, private law “regulation” may, however, be judicially more acceptable than blanket public law regulation.Since regulation can do only so much to deter the web's snake oil salesmen, the focus inevitably shifts to strengthening the role of the market by reducing the costs of health information to the consumer. “Kitemark” or “trustmark” schemes seek to limit the need for consumers to assess the quality of information themselves by encouraging providers to rate their own contributions or to comply with codes of conduct. With compliance or rating in place, a technology layer can be added that leverages downstream filtering technology or upstream filtering through membership in a distinct top-level domain4; Medcertain is an example of downstream filtering technology,5 whereas the World Health Organization favours the upstream approach.6 Filtering persuades content producers to participate in ratings systems because search engines and, increasingly, browsers may be set to ignore unrated sites.One approach that is emerging in the United States is to combine the evaluation of online content—for example, kitemarking—with private accreditation, a quality assurance system widely adopted by bricks and mortar healthcare providers.7 For this, a provider of online health information would subscribe to an accrediting agency's quality standards and pay the agency to check for compliance. Accreditation is a particularly interesting model because it uses a well respected method of quality assurance that is already recognised in private malpractice actions and brings traditional healthcare bodies and online providers under the same quality assessment umbrella. The use of such a model will also be of interest to litigators as US courts have held that failure to comply with applicable accreditation standards may constitute sufficient evidence of medical malpractice.Whether simple or sophisticated, and whether relying on self regulation or rating by third parties, kitemarking systems are not without their difficulties,8 critics,9 or legal pitfalls, including the potential liability of rating organisations to private legal actions.10 The voluntary adoption of codes of conduct in good faith by health websites should not be trivialised or discouraged. Equally, the potential for fraudulent self rating and the likelihood that kitemarking will reduce consumers' natural skepticism about health information continue to trouble US regulators; this may explain a lack of enthusiasm relative to that of their colleagues in Europe.AcknowledgmentsAvienda was formerly known as the Centre for Law Ethics and Risk in Telemedicine.