Advertising Personal Injury Services on the Internet
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1 Regulatry Guide 4 Advertising Persnal Injury Services n the Internet Versin 5, 5 September 2014 Level Gerge Street, Brisbane Qld 4000 PO Bx Brisbane, Adelaide Street Qld 4000 T (07) (Brisbane) r F ( E lsc@lsc.qld.gv.au W
2 The Persnal Injuries Prceedings Act 2002 (PIPA) restricts the advertising f persnal injury services by legal practitiners and thers, including n the internet. It gives the Legal Services Cmmissiner pwers t mnitr and enfrce the restrictins by investigating cmplaints abut alleged breaches f the restrictins and where apprpriate cmmencing disciplinary r ther enfrcement actin. The Cmmissiner has published a general guide Regulatry Guide 2: Advertising Persnal Injury Services which sets ut the restrictins and the Cmmissiner s interpretatin f the restrictins that apply t advertisements fr persnal injury services generally. 1 Ntably the Cmmissiner interprets and applies the restrictins narrwly with a view t bringing certainty t the grey areas, ensuring a cnsistency f apprach and creating a level playing field. This guide deals specifically with the restrictins n the advertising f persnal injury services n the internet and the factrs the Cmmissin takes int accunt in dealing with related cmplaints. 2 What is a persnal injury advertisement n the internet? A legal practitiner r any ther persn advertises persnal injury services n the internet by publishing a statement r statements that may be reasnably thught t be intended r likely t encurage r induce a persn t make a claim fr cmpensatin r damages under any Act r law fr a persnal injury OR t use the services f the practitiner, r a named law practice, in cnnectin with the making f a claim. 3 The Cmmissiner is f the view that every page f a website that cntains a direct r indirect reference t persnal injury, cmpensatin, damages r related services r claims which may reasnably be thught t be intended r likely t encurage r induce a viewer t make a claim fr cmpensatin r damages OR t use the services f a named practitiner r law firm in cnnectin with making a claim shuld be cnstrued t be an advertisement fr persnal injury services. It fllws that every page that fits that descriptin must cmply with the advertising restrictins. 1 G t Regulatry Guides page f the Cmmissin s website at 2 Please refer t Regulatry Guides: An Overview (the Overview) fr further infrmatin abut the regulatry guides and what we hpe t achieve by publishing them. The Overview is published n the Regulatry Guides page f the Cmmissin s website. We nte there that we hpe and intend that the guides will prmte adherence t high prfessinal standards and help prevent nn cmpliance, especially inadvertent nn cmpliance by that vast majrity f lawyers wh want t d the right thing but that the guides are nt, nr can they ever be binding. We explain that the Cmmissin is respnsible fr prmting, mnitring and enfrcing apprpriate standards f cnduct in the prvisin f legal services, nt fr setting them. The standards are set in laws enacted by parliaments, in the judgments f the disciplinary bdies and the curts and in the cnduct rules develped by the prfessinal bdies. We are very clear that the guides simply set ut the factrs we take int accunt in exercising ur regulatry respnsibilities in grey areas where it is uncertain hw a lawyer s prfessinal bligatins apply. This is n mre than lawyers and users f legal services are entitled t expect f a transparent and accuntable regulatr. 3 Sectin 64, Persnal Injuries Prceedings Act 2002 Legal Services Cmmissin Regulatry Guide 4 Advertising Persnal Injury Services n the Internet Versin 5 Sept
3 Internet websites that culd be cnstrued t be advertising persnal injury services may include, but are nt limited t the fllwing: practitiner and law firm websites; Yellw Pages Online r similar n line directries; rehabilitatin service prvider and ther cmmunity agency websites that include infrmatin abut r links r referrals t persnal injury services, r that are spnsred by named practitiners r law firms that prvide persnal injury services; websites which refer inquiries regarding persnal injury services t a practitiner r law firm. Websites and jurisdictin The Cmmissiner will regard any website that is viewed in Queensland t have been published in Queensland, wherever it riginated, 4 and, accrdingly, expects every website which is viewable in Queensland and publishes statements which amunt t advertisements fr persnal injury services t be PIPA cmpliant. Allwable cntent PIPA prvides that a practitiner r anther persn must nt advertise persnal injury services except by the publicatin f a statement that states ONLY the name and cntact details f the practitiner r a law practice f which the practitiner is a member, tgether with infrmatin as t any area f practice r speciality f the practitiner r law practice. 5 Allwable cntent n practitiner and law firm websites That said, PIPA authrises practitiners and law firms t include n their websites certain ther additinal allwable cntent, namely statements abut: the peratin f the law f negligence and a persn s legal rights under that law, and the cnditins under which the practitiner r law practice is prepared t prvide persnal injury services. 6 Accrdingly, practitiners and law firms are allwed t include material n their websites that is prhibited in persnal injury advertising mre generally including references t their preparedness t ffer free initial cnsultatins and n win n fee services and reprts r ther bjective analysis f persnal injury cases that have cme befre the curts. 4 see Dw Jnes & Cmpany v Gutnick [2002] 194 ALR Practitiners must als ensure that they cmply with Rule 36.2 f the Australian Slicitrs Cnduct Rules and in particular the restrictins n the use f the wrds accredited specialist. 6 Sectin 66(2) (b) Persnal Injuries Prceedings Act 2002 Legal Services Cmmissin Regulatry Guide 4 Advertising Persnal Injury Services n the Internet Versin 5 Sept
4 The additinal allwable cntent is allwable nly in websites that clearly identified as the website f a named practitiner r law firm. It therwise remains prhibited. Prhibited cntent PIPA prhibits the inclusin f statements in advertisements fr persnal injury services ther than the allwable cntent ( including the additinal allwable cntent) and accrdingly prhibits: Phtgraphs r images f any kind, including phtgraphs f practitiners, their ffices, and lcal landmarks; Statements amunting t self prmtin f the practitiner r law firm such as: We have a reputatin fr getting great results Our caring, prfessinal yet tenacius apprach ensures success Jseph has a great reputatin fr getting the jb dne I am a strng advcate fr injured wrkers Our slicitrs are members f the Fair G fr Wrkers Assciatin Client testimnials r war stries; Lgs which are based n legal images r themes, slgans r mttes such as industry leaders r 20 years experience ; and Descriptins f the practitiner s r law firm s rle in cases r recent decisins that are mre than an bjective analysis r reprt f the law. Client Inquiries PIPA prvides that a practitiner r a persn acting fr the practitiner r law practice f which the practitiner is a member des nt cntravene [the advertising restrictins] nly because the practitiner r ther persn advertises persnal injury services t any persn wh is already a client f the practitiner r law practice. 7 It defines a client t include a persn wh makes a genuine inquiry f a practitiner r law firm. 8 The Cmmissiner is f the view that a member f the public wh views r brwses a practitiner s r firm s website ught nt be characterised as a client r genuine inquirer fr that reasn alne. The Cmmissiner believes that practitiners and law firms are entitled t claim the client exemptin nly if they take reasnable measures t prevent peple wh are simply brwsing r idly curius frm accessing infrmatin that PIPA requires be restricted t clients. It is nt enugh in the Cmmissiner s view t ask peple wh are viewing the website t identify themselves as a client r smene wh is making a genuine inquiry simply by clicking a yes r n bx (where the yes bx takes them directly t cntent that is therwise prhibited). The Cmmissiner believes smething mre is required t distinguish clients frm the merely curius a prcess, fr example, which requires them t enter a passwrd befre they are given 7 Sectin 66(2)(a)(i) Persnal Injuries Prceedings Act Sectin 63 Persnal Injuries Prceedings Act 2002 Legal Services Cmmissin Regulatry Guide 4 Advertising Persnal Injury Services n the Internet Versin 5 Sept
5 access t therwise restricted material, r t enter their address r ther cntact details s they can be sent a passwrd. Prsecuting breaches f PIPA The Cmmissiner will cnsider each breach f the restrictins n the advertising f persnal injury services n its wn facts in accrdance with the Cmmissin s Discipline Applicatin Guidelines. 9 As a general rule, hwever, the Cmmissiner: will be disinclined t prsecute islated minr r merely technical breaches f the restrictins which are prmptly remedied nce drawn t attentin ; and will be inclined t prsecute flagrant r deliberate breaches f the restrictins r repeated minr r technical breaches. Further infrmatin This guide will be updated frm time t time. Whilst the Cmmissin will endeavur t infrm practitiners and law firms abut any amendments, they shuld regularly review the Plicies page f the Cmmissin s website ( t ensure that they have the mst up t date infrmatin. The Legal Services Cmmissin will nt prvide specific advice t practitiners r law firms abut the cntent f their advertisements unless it has cmmenced an investigatin. Hwever the Cmmissin will prvide general advice r clarificatin abut its apprach if requested. 9 The Discipline Applicatin Guidelines are published n the Plicies page f the Cmmissin s website. Legal Services Cmmissin Regulatry Guide 4 Advertising Persnal Injury Services n the Internet Versin 5 Sept
6 Versin Ntes Versin date 1 September & 3 Minr frmat changes 4 20 May Remved issues regarding linked pages and reference t QLS Ethics Advisry service. 5 September 2014 Legal Services Cmmissin Regulatry Guide 4 Advertising Persnal Injury Services n the Internet Versin 5 Sept
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