Your Healthcare Platform Needs a EULA
Why are end-user licensing agreements (EULAs) essential for healthcare websites and platforms? We discuss the purpose and content of EULAs and illustrate how they can make a big difference in potential lawsuits against you.
We have all registered to obtain an online account and clicked the “I Agree” button on the end-user licensing agreement (EULA). Little do most folks understand that these terms and conditions frequently constitute a binding agreement. The substance of these terms and conditions can be impactful, as they specifically discuss how the platform can be used, the license grant made to the user, and the limitations on the website’s liability. If you’re thinking about launching a telehealth or other healthcare platform, you will need at least one EULA. Read on to learn about the importance of EULAs.
The Purpose of EULAs
The agreements that explain the terms and conditions under which consumers can use specific software, websites, or platforms have many names, including “terms of service” and “clickwrap agreements.” These agreements are contracts between the software or platform developer and the users of that medium. They provide the user with a license grant to use the software or platform in some manner. But EULAs also do so much more.
First, EULAs establish the ownership of the software or platform. EULAs frequently have language preventing the user from reverse-engineering the technology. Second, EULAs specify limitations to the use of the software or platform. Software companies, for example, sometimes limit the use of a program to one computer. Online platforms may place limitations on user activities to prevent harassment and other potentially problematic behaviors. Third, EULAs aim to limit the software or platform developer’s liability.
Clauses in a EULA for Healthcare
In the healthcare context, EULAs serve some of the same functions as in the software industry. However, there are functions specific to healthcare that can make EULAs particularly useful. For example, a EULA for an online healthcare provider directory may specify that providers pay a fee for inclusion on the platform. This ensures that any prospective patients relying upon the directory do not interpret the platform’s listing as the platform’s endorsement of the provider.
Furthermore, many healthcare platforms include language to notify users that the platform itself does not provide professional services. For example, many platforms post blogs related to the content on that platform. The EULA language can help mitigate user misunderstanding as to whether the platform is providing medical advice or other licensed services.
Finally, for healthcare platforms, it is essential to discuss the Health Insurance Portability and Accountability Act (HIPAA) in a EULA. Typically, the EULA warns users not to provide the platform with their protected health information. However, healthcare platforms and websites are usually not considered covered entities under HIPAA—though they may still be considered business associates and thus required to comply with HIPAA’s privacy, security, and breach notification rules.
The end goals for having a EULA and including specific healthcare language in that EULA are twofold. You want to grant users a license to use your platform—that’s why you created it, after all! You also want to protect yourself with both the standard EULA language and with language that addresses common healthcare concerns.
EULA Legal Cases
With the exponential growth of technology, many court cases center on the existence of a EULA or the terms specified in that EULA. Read on to see how EULA language helped two companies win favorable decisions.
Feldman v. Google
One of the most well-known EULA cases is Feldman v. Google, Inc.1 In this case, Feldman attempted to argue that he was a victim of “click fraud,” which occurs when a person repeatedly clicks on ads despite a lack of genuine interest in the advertised product or service. Feldman claimed that the agreement with Google required him to pay for all ad clicks, whether they were authentic or fraudulent.
Feldman sued Google in Pennsylvania, but Google wanted to litigate the case in California. Google’s AdWords EULA had a clause that required all legal issues to be adjudicated in Santa Clara County, California. Because Feldman had to scroll down to the bottom of the EULA and click “I accept” when he signed up with Google AdWords, the court decided that Feldman had agreed to the terms of the EULA, including the one determining where the case would be adjudicated.
Heidbreder v. Epic Games, Inc.
A more recent EULA case is Heidbreder v. Epic Games, Inc.2, which involved the maker of the well-known video game Fortnite. Users can play the game for free without an account. However, users frequently create accounts to make additional in-game purchases. In this case, an account holder linked his debit card to his Fortnite account. Fortnite had a data breach, which resulted in an unknown party making fraudulent charges on his debit card. The incident prompted the account holder to file a class action lawsuit against Epic Games.
Epic Games moved to arbitrate the claim outside of court, as stipulated by Fortnite’s EULA. The account holder alleged that he never agreed to the EULA. Instead, it was his minor son who had agreed to the EULA. The court decided that the minor child acted with actual authority in agreeing to the EULA, which meant that the account holder was bound to its terms as well. Therefore, the court determined that the class action must be arbitrated, as Epic Games preferred,.
In short, end-user licensing agreements—though often clicked impatiently and with little review by the user—can hold much weight in legal actions against the developer.
Contact Jackson LLP to discuss your EULA
If you have developed or are developing a healthcare application, platform, or website, you will likely need a healthcare-specific EULA. Contact the experienced attorneys at Jackson LLP: Healthcare Lawyers to determine what information your EULA should contain and how it should be structured.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader and should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction
1. Feldman v. Google, Inc., 513 F.Supp.2d 229 (E.D.Pa. 2007).
2. United States District Court, 2020 WL 548408 (E.D.N.C. Feb. 3, 2020).