What to Consider Regarding Before-and-After Photos in Med Spas
Before and after photos are a powerful marketing tool in the medical aesthetics industry. They provide compelling visual proof to potential clients of the efficacy of a treatment. By showcasing real results, med spas can attract prospective clients. While med spa owners, like any business owner, should be concerned about the quality of the photos, med spa owners need to be concerned about more than just things like lighting. A whole host of potential legal issues could arise when it comes to using before and after photos for med spa advertising. Here is what med spa owners should be aware of when using before-and-after photos.
- Get The Client’s Consent
Before posting any patient image, you must secure informed, written consent for using the photo. A general treatment consent form is not enough. The client needs to consent to having their photos used. The consent form should include:
- How the photos will be used
- Will the photos be used in promotional materials? Professionally?
- Length of time the photos will be used
- Will they be used for a couple of months? Years?
- Where the photos will be used
- Will the photos go on social media? A brochure?
- An ability for the patient to decline having photos used, but still receive treatment
- Patients should understand that they can still get treatment while being uncomfortable or otherwise unwilling to have before-and-after photos taken.
- An understanding of whether consent can be revoked later and under what conditions
- If the patient does give consent but has second thoughts later, they should understand if they can revoke consent.
- Understand How HIPAA Applies
If your med spa qualifies as a covered entity under HIPAA, then patient photos may be considered Protected Health Information (PHI) as long as the photos can be used to identify the individual in any way. This classification does not just apply to full-face photos. It might include things like distinctive injuries, tattoos, or jewelry.
Sharing any such photo without proper, written authorization is a clear violation of HIPAA. The consequences can be severe, with penalties ranging from a few hundred dollars for minor infractions to hundreds of thousands of dollars for more serious or intentional breaches. In addition to the financial risks, noncompliance can lead to reputational damage and potential civil litigation.
- Store Photos Securely
Beyond posting the photos, it is also crucial that the photos are properly secured. Ideally, images should be stored in encrypted databases or within your Electronic Medical Records (EMR) system. If your practice uses a smartphone or camera to capture these images, ensure that the device is password-protected to prevent unauthorized access. Once the photos are taken, they should be transferred to a secure server as soon as possible and deleted from the device immediately after upload.
- Exercise Caution On Social Media
Like other businesses, med spas can drive business by using social media. While having an excellent social media presence can be lucrative for your practice, it must be done with great care. If filming in the office, make sure that anyone in the photo or clip–however brief–gives permission. Remember that, even if someone is not directly featured on social media, they might be concerned that others recognize them, and do not necessarily want others to know that they received services at a med spa.
Keep a signed consent form on file for every image you share. If that person does not consent, you still may be able to use the photo. However, you will want to blur or crop out any identifying features. What counts as an identifying feature can be tricky. Err on the side of caution.
Remember that what goes on the internet stays on the internet. Deleting a post does not eliminate your liability. Screenshots can circulate indefinitely, and clients who feel their privacy was violated may take legal action.
- Train Staff On Photo Policies
Even with strong policies in place, they are only effective if your team follows them consistently. All staff should be trained on key procedures, including how to obtain signed photo consents, explain patient rights, and securely store image files. They should also understand which types of photos are appropriate to share and who within the organization is authorized to post content on social media or your website.
- Don’t Be Misleading With Photos
When using before and after photos, avoid making promises about results. While patients can aspire to get the results demonstrated in the photo, and that will drive business, they need to understand that they might not look like the “after” photo when they are done. Always include disclaimers such as “individual results may vary” to set realistic expectations. Additionally, if the “after” photo was taken after multiple treatments, be sure to note that as well.
You also want to ensure that the conditions in both photos are consistent. This includes lighting, angles, and makeup. Be careful about editing the photos. While unethical to manipulate the photos to make them appear that the “after” was better than it really was, it can also potentially cause legal headaches, as a client might allege that the med spa engaged in deceptive practices.
Contact an Experienced Med Spa Attorney
When used appropriately, before and after photos can be a great asset to your med spa’s brand. As demonstrated, however, they can also open the door to privacy violations, regulatory scrutiny, and unhappy clients if not handled properly.
For med spa owners hoping to post before and after photos, it can be done, but it should be done with great care. Secure consent, stay compliant, and train staff about appropriate usage. Getting clicks is great, but not at the cost of unhappy clients or lawsuits. An experienced healthcare law attorney who understands med spas can help you reap the benefits of posting photos without opening yourself up to legal headaches down the road.