Legal liability for internet based cross-border provision of medical advice, information and products

Our world is becoming increasingly globalised. One area that has been dramatically transformed lately is the manner in which we communicate. The Internet is not the first revolution of the way in which we communicate; however, it certainly represents one such revolution. Never before has it been so easy, for so many, to access so much information. Furthermore, the Internet in general, and the World Wide Web in particular, makes it possible for ordinary people to become global publishers. In addition, the Internet also provides for cost-effective global commerce. Consumers can choose amongst what seems to be an ever-increasing amount of products and services, while remaining in the comfort of their own home. At the same time, businesses, even smaller sized ones, can access a global marketplace by comparatively simple and cost effective means.

Increasingly, the net is also being utilised by the health sector. In September 2001 an estimated 52% of Australian households were online.1 Studies conducted in the US has indicated that as many as 40 - 60 % of adults in the US have used the Internet for health information.2 It could consequently safely be suggested that there is a potentially huge market for health products, information and services being provided online.3 Such praxis give rise to complex legal issues, particularly when the borderless nature of the Internet is taken into account. Existing literature examining the legal implications of so-called telemedicine4, or e-health[1] , provide good discussions of the problems associated with the substantive law, but does not ordinarily explore the jurisdictional issues [2] that arise, in any great depth. [3] With this in mind, this paper will seek to provide an analysis of the jurisdictional issues that arise out of the provision of medical advice, information and products online and across borders. In doing so, focus is placed on the private law issue of liability. [4] Furthermore, a range of measures practitioners can take to limit their jurisdictional exposure will be explored.

The reader should note that Australian law constitutes the point of departure for the discussion, and is used to exemplify how domestic law addresses this area.