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Legislative restrictions on advertising personal injury services

Since 2002, legislation in Queensland, has been restricting the advertising of personal injury services in Queensland.  We have previously reported on the legislation providing for these restrictions which are monitored and enforced by the Queensland Legal Services Commission.

The purpose of these restrictions is to limit personal injury claims as much as possible by keeping those injured in accidents unaware of their legal rights and entitlements. This is particularly so given the availability of No Win No Fee legal services such as those offered by The Personal Injury Lawyers.  

No Win No Fee personal injury compensation claims

What the No Win No Fee service offers is basically a "nothing to lose" opportunity. With No Win No Fee, you are able to engage the best and most experienced lawyers, such as The Personal Injury Lawyers who are specialists in personal injury law, to undertake your case for you, ensuring that you achieve the best possible outcome for your claim. And you have the guarantee that if you do not achieve compensation, then our services are provided free of charge.

The response to this service by insurers was to lobby the Government to introduce restrictions on the advertising of this service and personal injury services generally. Although the government claims these restrictions were introduced to ensure the viability of the insurance industry and the affordability of insurance in Queensland, what it has also done is reduce the awareness of the community of their rights and entitlements to pursue compensation when injured due to the wrongful or neglectful act or failure to act by another.

Guidelines for the advertising of personal injury claims in Queensland have been issued by the Legal Services Commission. We have previously provided you with the initial guidelines issued by the Commission in our article at : Guidelines for the Advertising of Personal Injury Services on the Internet

More recently further guidelines have been introduced:

Guidelines for the advertising of personal injury services No. 4

The Personal Injuries Proceedings Act 2002 (PIPA) restricts the advertising of personal injury services by legal practitioners and others, including on the internet. It gives the Legal Services Commissioner powers to monitor and enforce the restrictions by investigating complaints about alleged breaches of the restrictions and where appropriate commencing disciplinary or other enforcement action.

The Commissioner has published a general guide ‐ Regulatory Guide 2: Advertising Personal Injury Services ‐ which sets out the restrictions and the Commissioner’s interpretation of the restrictions that apply to advertisements for personal injury services generally. Notably the Commissioner interprets and applies the restrictions narrowly with a view to bringing certainty to the grey areas, ensuring a consistency of approach and creating a level playing field.

This guide deals specifically with the restrictions on the advertising of personal injury services on the internet and the factors the Commission takes into account in dealing with related complaints.

What is a personal injury advertisement on the internet?

A legal practitioner or any other person advertises personal injury services on the internet by publishing a statement or statements that “may be reasonably thought to be intended or likely to encourage or induce a person to make a claim for compensation or damages under any Act or law for a personal injury OR to use the services of the practitioner, or a named law practice, in connection with the making of a claim.” 

The Commissioner is of the view that every page of a website that contains a direct or indirect reference to personal injury, compensation, damages or related services or claims which may reasonably be thought to be intended or likely to encourage or induce a viewer to make a claim for compensation or damages OR to use the services of a named practitioner or law firm in connection with making a claim should be construed to be an advertisement for personal injury services. It follows that every page that fits that description must comply with the advertising restrictions.

Internet websites that could be construed to be advertising personal injury services may include, but are not limited to the following:

 practitioner and law firm websites;

 Yellow Pages Online or similar on‐line directories;

 rehabilitation service provider and other community agency websites that include information about or links or referrals to personal injury services, or that are sponsored by named practitioners or law firms that provide personal injury services;

 websites which refer inquiries regarding personal injury services to a practitioner or law firm.

Personal Injury Websites and jurisdiction

The Commissioner will regard any website that is viewed in Queensland to have been published in Queensland, wherever it originated,4 and, accordingly, expects every website which is viewable in Queensland and publishes statements which amount to advertisements for personal injury services to be PIPA compliant.

Allowable content:

PIPA provides that “a practitioner or another person… must not advertise personal injury services except by the publication of a statement that states ONLY:

 the name and contact details of the practitioner or a law practice of which the practitioner is a member, together with

 information as to any area of practice or speciality of the practitioner or law practice.”

Allowable content on practitioner and personal injury law firm websites:

That said, PIPA authorises practitioners and law firms to include on their websites certain other additional allowable content, namely statements about:

 “the operation of the law of negligence and a person’s legal rights under that law”, and

 “the conditions under which the practitioner or law practice is prepared to provide personal injury services.” 

Accordingly, practitioners and law firms are allowed to include material on their websites that is prohibited in personal injury advertising more generally including references to their preparedness to offer “free initial consultations” and “no win‐no fee” services and reports or other objective analysis of personal injury cases that have come before the courts.

The additional allowable content is allowable only in websites that clearly identified as the website of a named practitioner or law firm. It otherwise remains prohibited.

Prohibited content on Personal Injury Lawyer Websites:

PIPA prohibits the inclusion of statements in advertisements for personal injury services other than the “allowable content”( including the additional allowable content) and accordingly prohibits:–

 Photographs or images of any kind, including photographs of practitioners, their offices, and local landmarks;

 Statements amounting to self‐ promotion of the practitioner or law firm such as:

o “We have a reputation for getting great results”

o “Our caring, professional yet tenacious approach ensures success”

o “Joseph has a great reputation for getting the job done”

o “I am a strong advocate for injured workers”

o “Our solicitors are members of the Fair Go for Workers Association”

o Client testimonials or war stories;

 Logos which are based on legal images or themes, slogans or mottos such as “industry leaders” or “20 years experience”; and

 Descriptions of the practitioner’s or law firm’s role in cases or recent decisions that are more than an objective analysis or report of the law.

Client Inquiries Seeking Personal Injury Services:

PIPA provides that “a practitioner or a person acting for the practitioner or law firm of which the practitioner is a member does not contravene [the advertising restrictions] only because the practitioner or other person advertises personal injury services to any person who is already a client of the practitioner or law practice.” It defines a “client” to include a person who makes a “genuine inquiry” of a practitioner or law firm.

The Commissioner is of the view that a member of the public who views or browses a practitioner’s or firm’s website ought not be characterised as a client or genuine inquirer for that reason alone. The Commissioner believes that practitioners and law firms are entitled to claim the “client” exemption only if they take reasonable measures to prevent people who are simply browsing or idly curious from accessing information that PIPA requires be restricted to “clients”.

It is not enough in the Commissioner’s view to ask people who are viewing the website to identify themselves as a client or someone who is making a genuine inquiry simply by clicking a ‘yes’ or ‘no’ box (where the ‘yes’ box takes them directly to content that is otherwise prohibited). The Commissioner believes something more is required to distinguish “clients” from the merely curious – a process, for example, which requires them to enter a password before they are given access to otherwise restricted material, or to enter their email address or other contact details so they can be sent a password.

Prosecuting breaches of PIPA

The Commissioner will consider each breach of the restrictions o n the advertising of personal injury services on its own facts in accordance with the Commission’s Discipline Application

Guidelines. As a general rule, however, the Commissioner:

 will be disinclined to prosecute isolated minor or merely technical breaches of the restrictions which are promptly remedied once drawn to attention ; and

 will be inclined to prosecute flagrant or deliberate breaches of the restrictions or repeated minor or technical breaches.

Further information

This guide will be updated from time to time. Whilst the Commission will endeavour to inform practitioners and law firms about any amendments, they should regularly review the Policies page of the Commission’s website (www.lsc.qld.gov.au) to ensure that they have the most up to date information.

The Legal Services Commission will not provide specific advice to practitioners or personal injury law firms about the content of their advertisements unless it has commenced an investigation. However the Commission will provide general advice or clarification about its approach if requested.

 

Guidelines for the advertising of personal injury services No. 5

The Commissioner has published two guides which set out the restrictions on the advertising of personal injury services and the factors the Commission takes into account in dealing with related complaints ‐ Regulatory Guide 2 ‐ Advertising Personal Injury Services and Regulatory Guide 4 ‐ Advertising Personal Injury Services on the Internet. 

It has since come to the Commissioner’s attention that “advertisements” for personal injury services appear on the Search Engine Results Pages (SERPs) of websites like Google. Thus entering words such as “personal injury lawyer queensland” or “workcover lawyer brisbane” into these search engines will result in viewers being given many thousand of listings that allow them to link to law firm and other websites which provide information about personal injury services in Queensland.

In the Commissioner’s view, some of those listings amount to advertisements for personal injury services pursuant to section 64 of PIPA and as such should comply with the restrictions set out in the Act.

Accordingly, and in response to concerns raised by practitioners, the Commissioner has given consideration to the appropriate regulation of information appearing on SERPs. This is to ensure the advertising restrictions in PIPA are not being breached and, in particular, to ensure a level playing field. Law firms which comply with the restrictions should not be disadvantaged by those who do not.

Search engine listings for personal injury services

Search engine results or “listings” fall into one of two kinds ‐ “organic links” and “sponsored links”.

Organic links are created when the search engine compares the search terms with the content of websites. Comparisons are made with both the material visible on the website and background or programming data which is not visible on websites. The best matches to the search terms are listed allowing the viewer to link to the relevant website. The information displayed in these organic links is often replicated from material appearing on compliant practitioner websites including statements such as “no‐win, no‐fee”. That material is replicated without the website owner’s consent and knowledge. Accordingly, the Commissioner does not believe that organic links can be reasonably be construed to be advertisements or practically be dealt with as advertisements under PIPA.

In contrast, “sponsored links” appear on SERPs as a result of the website owner entering into an arrangement with the search engine provider to ensure that links to their website will be given preferential positioning on the SERP. Sponsored links are usually purchased on a “pay per click” basis and the website manager can contrive to have particular words or terms included in the information that appears in the listing for a sponsored link. In other words a sponsored link is no different from any other paid advertisement.

Section 66 of PIPA provides: (1) A practitioner or another person, whether or not the other person is acting for a law practice, must not advertise personal injury services except by the publication of a statement that—

(a) states only the name and contact details of the practitioner or a law practice of which the practitioner is a member, together with information as to any area of practice or speciality of the practitioner or law practice; and

(b) is published by an allowable publication method.

Example of advertising that contravenes subsection (1)‐‐ advertising personal injury services on a 'no win, no fee' or other speculative basis. Maximum penalty‐‐300 penalty units.

(2) However, for a practitioner or a person acting for the practitioner or a law practice of which the practitioner is a member, the practitioner or person does not contravene subsection (1) only because—

(a) the practitioner or person advertises personal injury services‐‐

(i) to any person who is already a client of the practitioner or law practice; or

(ii) to any person at the practitioner's or law practice's place of business; or

(iii) under any order by a court; or

(b) the practitioner or person advertises personal injury services on the Internet website of the practitioner or a law practice of which the practitioner is a member if the advertisement is limited to a statement about‐‐

(i) the operation of the law of negligence and a person's legal rights under that law; and

(ii) the conditions under which the practitioner or law practice is prepared to provide personal injury services.

The exemptions that are applicable to the internet advertising of personal injury services apply only in respect of a practitioner’s own website. In any other circumstances, such as sponsored links on SERPs, the allowable information is restricted to the name, contact details and area of practice or speciality of the practitioner or firm.

In respect of sponsored links it remains the obligation of each practitioner and firm to ensure that any listings are PIPA compliant. Accordingly all practitioners should review their internet advertising and take steps to make certain that all advertisements contain only the allowable information.

Furthermore practitioners should ensure that the content of any pages accessed through a sponsored link is also PIPA compliant.

Non‐lawyer websites

The Commissioner has also noted that a number of websites are operated by companies that are not legal practices. These websites generally act as direct referral agencies or provide basic advice before directing enquiries about personal injury matters to practitioners.

It is the Commissioner’s view that any practitioner who receives referrals from such sites has a professional obligation to ensure that the referring website is compliant. Where a website is not compliant a practitioner must not accept any referrals or should withdraw any listing.

The Commissioner takes the view that a practitioner’s failure to comply with these requirements is conduct capable of constituting unsatisfactory professional conduct or professional misconduct.

Practitioners must also ensure that in dealing with these types of entities they do not breach section 68 of PIPA which deals with touting or rule 12.4.4 of the Australian Solicitors Conduct Rules which deals with referral fees.

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