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FTC: BetterHelp pushed users to share mental health info then gave it to Facebook

Feds propose $7.8M payment and ban on revealing 'sensitive' data to settle complaint

Even if you don't know anyone who has used BetterHelp's services, podcast fans will recognize it from its annoying adverts for its online therapists. American regulators, however, allege the company's relationship with the advertising industry is more perverse than a mere irritating jingle, claiming it betrayed loyalties that should lie with customers by passing on their mental health info to Facebook, Snapchat and others.

The Federal Trade Commission has asked the company to pay $7.8 million and slapped a ban on it sharing consumers' health data with advertisers, in a proposed settlement made public today. The settlement will resolve a 2022 complaint that claimed BetterHelp pushed users to complete an unskippable questionnaire in order to obtain services and then passed on that info to Meta and more to promote its services.

BetterHelp – whose business boomed during COVID lockdown – has denied wrongdoing, and claimed in a statement that it merely used "industry-standard practice... routinely used by some of the largest health providers, health systems, and healthcare brands."

According to the complaint [PDF], users were told by BetterHelp: "Rest assured – any information provided in this questionnaire will stay private between you and your counselor."

The commission alleged the company then went on to tweak that statement over time. The complaint claimed that in December 2020, the company changed the statement to read: "Rest assured – this information will stay private between you and your counselor" (emphasis on alteration). And in January 2021, the complaint claimed, it changed it again to state: "Rest assured – your health information will stay private between you and your counselor" (emphasis on alteration). The FTC added that in October 2021, it "removed this representation altogether."

The company is then alleged to have compiled lists of visitors' and users' email addresses, which it uploaded to Facebook to match the individuals to their Facebook user accounts in order to target them and others like them with advertisements, and is alleged to have later "re-targeted" them with advertisements to refer their Facebook friends to the service.

The filing alleged: "Between 2017 and 2018, Respondent uploaded lists of over 7 million Visitors' and Users' email addresses to Facebook. Facebook matched over 4 million of these Visitors and Users with their Facebook user IDs, linking their use of the Service for mental health treatment with their Facebook accounts."

The complaint added:

These harms were not reasonably avoidable by consumers. It was effectively impossible for Visitors and Users to know that Respondent was using and disclosing their health information for advertising purposes because Respondent actively concealed the practices through repeated misrepresentations and a lack of notice. Indeed... numerous Users expressed outrage about the disclosures upon learning of them.

The FTC also noted that BetterHelp "prominently" displayed a seal that attested to purported compliance with America's Health Insurance Portability and Accountability Act of 1996 (HIPAA), a law that outlines privacy and information security protection that residents can expect for their health information.

In addition, the complaint said, BetterHelp told consumers that it was "HIPAA certified," with its customer service representatives informing consumers of this. However, "no government agency or other third party" had reviewed BetterHelp's information practices for compliance with HIPAA, let alone determined that its practices met the requirements of HIPAA.

The $7.8 million payment from BetterHelp will be used to provide partial refunds to people who signed up for and paid for BetterHelp's services between August 1, 2017, and December 31, 2020, the FTC said

"When a person struggling with mental health issues reaches out for help, they do so in a moment of vulnerability and with an expectation that professional counseling services will protect their privacy," Samuel Levine, director of the FTC's Bureau of Consumer Protection, noted. "Instead, BetterHelp betrayed consumers' most personal health information for profit. Let this proposed order be a stout reminder that the FTC will prioritize defending Americans' sensitive data from illegal exploitation."

The counselling company told The Register in a statement: "BetterHelp and the FTC have reached a settlement in regard to BetterHelp's advertising practices that were in effect between 2017 to 2020 ... We understand the FTC's desire to set new precedents around consumer marketing, and we are happy to settle this matter with the agency. This settlement, which is no admission of wrongdoing, allows us to continue to focus on our mission to help millions of people around the world get access to quality therapy."

The direct-to-consumer mental health platform, which is owned by Teladoc Health Inc, boomed during COVID as people struggled to secure in-person appointments, with Teladoc reporting that BetterHelp was responsible for $1 billion of its revenues in FY2022. Financial analysts at SeekingAlpha noted at the time this represented an impressive year-on-year growth of 42.8 percent from FY2021 levels of over $700 million. ®

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