Employees on Twitter – strict liability for pharma?

A recent ruling by the Prescription Medicines Code of Practice Authority (the “PMCPA”) has illustrated the challenges that pharmaceutical companies face in relation to social media, and suggests that having a social media policy may not be enough to avoid liability under the ABPI’s Code of Practice for an employee’s actions.

A pharmaceutical company employee had sent a tweet from their personal Twitter account in which they referred to a prescription-only medicine and one of its licensed indications.  The tweet was sent in error, and was intended to be a personal and confidential message to a friend.  However, the recipient of the tweet worked for a patient organisation, and the pharma company employee’s tweet was in fact visible to all the followers of the recipient and the relevant patient organisation.  An anonymous complaint was filed under the Code, alleging that the tweet amounted to promotion of a prescription-only medicine to the public.

The pharmaceutical company had a social media policy in place, which stated that no employee might comment in a social media forum about a company product or business activity.

While the PMCPA noted that the company had a policy in place that should have prevented the tweet from being sent, and that the company had been “badly let down” by its employee, the company was still ruled to be in breach of Clause 22.1 (promotion of prescription-only medicines to the public) and Clause 9.1 (high standards had not been maintained).  The PMCPA noted that pharmaceutical companies “needed to be extremely cautious when using social media”.

This all sounds like a case of strict liability for pharmaceutical companies in relation to their employees’ use of Twitter.  While this is a risk that cannot be eliminated, what can companies do to try to reduce the risk here?

• Your social media policy – ensure you have a social media policy that is comprehensive and specifically deals with the risks associated with the use of social media by pharmaceutical company employees.
• Training – train all employees and contractors regularly on the social media policy.  Ensure that any authorised users of social media for company purposes have been adequately trained to ensure that they understand the way in which the relevant social media channels work (and in particular where their message might end up…).
• Sanctions – make sure that your employees understand clearly the consequences for them and the company if they breach the policy.  For example, dismissal may be appropriate for sufficiently serious breaches.
• Third party contractors – remember that you will be deemed to be responsible under the Code for the actions of any third party that you engage, such as a marketing agency.  Make sure that your contracts with these third parties include robust obligations on them to comply with your policies, and to train their staff in relation to those policies.

Lawyers Tim Worden