Protecting Privacy and Enabling Pharmaceutical Sales on the Internet: A Comparative Analysis of the United States and Canada

I. INTRODUCTION The Internet offers the potential to revolutionize the manner in which people receive health information and treat their health conditions. More than 40.9 million Americans were expected to use the Internet in the year 2000 for health care.(1) "According to Investors Business Daily, 43 percent of [W]eb surfers access health care data online each year. Health concerns are the sixth most common reason that people use the Internet, and according to the market research firm, Cyber Dialogue Inc., this number is growing by 70 percent a year."(2) Even without the growth of the Internet, the twentieth century has seen an incredible proliferation of health care services. Rather than simply consulting a single family physician for all health-related matters, patients now seek counsel from many individuals about needed services. The Internet offers an easy, fast, and potentially more robust source of health care delivery. Nonetheless, this incredible new medium also has the potential to defraud consumers seeking health information and services in a manner that probably would not have occurred had they simply consulted their familiar--and trusted--licensed medical practitioners. Generally, the health care industry has lagged behind other sectors in the use of information technology services and solutions.(3) In the modern health care arena, however, sharing information is increasingly important to facilitate patient diagnosis and treatment, insurance and benefit claim evaluation and payment, public health monitoring, research, and health care education and training. To respond to widespread consumer use of the Internet for health-related reasons, health care organizations and services must migrate from their traditional "bricks-and-mortar"(4) establishments to the Internet.(5) Until two years ago, even Kaiser Permanente, the country's largest health-maintenance organization ("HMO"), kept paper files for its patients' and shipped records around the country by traditional truck delivery.(6) Today, Kaiser and many other HMOs and health care professionals use the Internet to facilitate anything from individual account access, communication between the patient and health care provider, storage and transmission of patient data, to advice and discussion among health professionals, drug and disease research, and product ordering.(7) Before Internet health services overtake their bricks-and-mortar counterparts, the law must ensure an adequate level of confidentiality and control over consumers' personal health information; reliability of online information; and direct redress for invasions of privacy and unfair, deceptive, and fraudulent trade practices. While online health care delivery raises many important issues, this Comment offers a comparison of the American and Canadian legal approaches to informational health privacy and Internet pharmacy sales. The United States and Canada have taken different approaches to the general protection of privacy, and this difference remains consistent between the two nations' treatment of Internet medical privacy. While the United States offers a patchwork of industry-specific privacy laws and encourages industry self-regulation, Canada has recently enacted a comprehensive privacy protection law that covers actions of both public and private actors and gives consumers a private right of action. Nonetheless, the United States has recently enacted a detailed medical privacy law. While this industry-specific law covers actions of both public and private actors, it does not give consumers a private right of action. This U.S. law is likely more comprehensive in terms of medical privacy protections because of its pinpoint focus, but it does not offer an industry-neutral, umbrella privacy protection and individual redress that the Canadian law promises. The advent of the Internet pharmacy, however, has caught both countries off guard; thus, there likely will be more consistency and cross-country cooperation in the future regulations of Internet pharmacy sales. …