As your access to clientele increases, so does your exposure to legal liability.
The growth of the Internet has led to a revolution in information sharing. In the area of health and fitness, the Internet offers multiple benefits to both consumers, who gain easy access to professional fitness advice, and personal fitness trainers (PFTs), who gain access to a virtually unlimited number of potential clients through online personal training. However, online training ventures are loaded with pitfalls for PFTs. Numerous questions arise in this environment:
- How can you screen clients for potential risks, monitor their form or assess their results without face-to-face contact? And what are the liability issues connected with this lack of supervision?
- Does online training establish a legally binding relationship that can expose you to out-of-state lawsuits? If you post a website and someone from another state is injured after following the advice on that site, are you liable?
- Are waivers and releases of liability effective and enforceable in the context of online training?
Three essential elements of personal training are baseline assessment, observation and feedback; clearly, these processes are severely compromised in cyberspace. Through e-mails, you may gather information regarding an online client’s medical status, fitness history, age, gender, and so on, but without any personal contact, you have no idea if the client is being honest and thorough in every response. One of the basic guidelines for PFTs—conducting a physical assessment and a personal consultation with every client prior to recommending a fitness regimen (ACSM 2000)—cannot practically be followed with clients on the other side of the country. In addition, it’s easy to see how injuries can occur when you cannot correct a client’s form, observe biomechanical imbalances or adjust load or volume based on performance. Even the most carefully written instructions on how to perform an exercise may be misunderstood (Ellrod 2000), and in cyberspace, miscommunications cannot be instantly recognized and remedied. Should a client misconstrue your instructions, get injured and sue, you would face the impossible task of proving that your instructions were subject to only one interpretation (Ellrod 2000).
If online personal training establishes a legally binding relationship, you are responsible for “duty of care.” If you breach that duty, you risk exposure to costly litigation. Due to the worldwide nature of the Internet, you may be forced to defend yourself against claims of negligence outside your home state. Most trainers overlook this possibility. How do you know if you are establishing a legally binding relationship with clients in another state? A relationship may be established through two avenues: valid contract and minimum contacts.
There are two types of contracts: express and implied. An express contract is a written agreement. The proof of such an agreement is the document itself. All parties who sign a fitness-center membership agreement are legally bound to that express contract.
An implied contract is established via an oral agreement or a similar exchange. The existence of an implied contract is proved by the conduct of the parties. There may be pieces of written evidence—such as letters, memos or notes—but there is no formal written document.
In a more personal setting, the trainer–client relationship is usually established through a written contract. But how does one negotiate, explain or sign a contract from hundreds or thousands of miles away? E-mails are mere memos, not wholly encompassing documents of mutual assent. While the exchange of e-mails is evidence of intent to enter an agreement, the resulting contract may be implied. Any legal obligations that exist in cyberspace most likely arise from implied agreements. (But see “Precautions You Can Take” on page 115.)
Whether or not a contract is express or implied is but one determinant of a legally binding relationship. The greater issue is establishing the existence of minimum contacts.
The existence of “minimum contacts” is essential for establishing legal liability in the context of online personal training. The approach adopted by the courts in establishing minimum contacts in cyberspace involves a sliding scale: The more extensive the interaction is between the two parties, the more likely it is that this interaction will satisfy the minimum-contacts requirement.
One area of concern for PFTs is the use of websites. Theoretically, if you post a website, anyone in any part of the world may view that site and accept the information posted as fact. The issue you must address is whether someone who views your website could establish a minimum-contacts requirement and therefore enforce a legally binding relationship with you. A singular visit to a website would certainly not be sufficient. However, the extent of the connection between a Web surfer and the website (and its creator/host) must be taken into account (Emanuel 2000). There are three types of websites, involving three levels of interaction: (1) posting sites, (2) interactive sites and (3) commercial sites.
Posting Sites. Posting websites contain information for casual viewing. Websites that post journal articles, movie reviews or picture galleries are typical examples. The viewers of such sites adopt a passive role, and no transactions are made through the site (Emanuel 2000). It is highly unlikely that the viewer of a posting website could satisfy the minimum-contacts requirement.
If you create a website that simply lists your education and special skills, describes the benefits of core training and gives your e-mail address, a viewer’s response to that information might be passive. But what if the viewer sends you an e-mail? As long as you do not conduct business via e-mail, no business transaction or other interactive response is deemed to have occurred. However, if you eventually establish a business relationship offline, minimum contacts might be established, and the original e-mail could be included as one contact.
Interactive Sites. Interactive sites commonly sell some goods and may include toll-free numbers. Most interactive websites, as defined here, are intended to service local areas and small businesses. For your interactive site to satisfy the minimum-contacts requirement outside your home state, you must market to residents in the target state (Emanuel 2000). For example, posting a toll-free telephone number with which to purchase merchandise might constitute purposeful availment if you sold a sufficient number of items to a sufficient number of residents in the target state. However, there must be some evidence that you purposefully sought out the residents of that state. A few isolated sales are unlikely to be sufficient grounds for jurisdiction. (See “The Types of Jurisdiction,” on page 114.)
When it comes to online training, interactive sites prove to be more complicated. Posting a website that includes a toll-free number with which to inquire about training services could be construed as targeting residents of any state. On the other hand, if you post a website with a toll-free number and mention that you train your clients out of Gym XYZ in Venice, California, you are showing no intention of targeting residents of other states. Carefully drafting your website to clarify your intended audience is vital. (See “Precautions You Can Take,” 115.)
Commercial Sites. Commercial websites, which are expressly designed to conduct business transactions, will almost always satisfy the minimum-contacts requirement. These sites are labeled as e-commerce sites, which encourage out-of-state residents to conduct transactions with the company via the website (Emanuel 2000). Websites that allow viewers to sign up for regular mailings or other communications with companies are also deemed commercial sites, even if no purchases may be made online (Emanuel 2000). Note that these correspondences are regular and periodic, unlike a one-time e-mail sent for “more information” from a posting website. Regular correspondence is evidence that you have purposefully availed yourself of the privilege of doing business in another state, and you can be justifiably called in to defend yourself in litigation in that state.
The typical online personal trainer is likely to fall in this category. If you post a website offering training services for a fee, with the Internet being the principal mode of communication with your cyberclient, you have purposefully availed yourself of the privilege of doing business in the state in which the client resides. Should that client be injured due to alleged negligence on your part, you could be forced to defend a lawsuit in that state. While such an occurrence may be rare, the potential risks are great enough that you should be extremely cautious when undertaking online ventures. The costs of a lawsuit—including travel for you and your attorney(s), legal fees, document costs, and fees for expert witnesses essential in verifying the e-mail trail—could be devastating.
Another potential pitfall for online personal trainers involves waivers and releases of liability. Some states—such as Louisiana, Montana, New Mexico and Virginia—hold waivers to be against public policy in fitness settings. If you work with a client in one of those states, any waiver will be unenforceable. Moreover, the specific requirements regarding the language and/or content of waivers vary from state to state (Ellrod 2000). Thus, in cyberspace, waivers and releases may be ineffective and expose you to liability.
Due to the uncertainty, unfamiliarity and potential volatility of the online environment, being aware of and educated about the complex legal issues and financial consequences of online training is essential to your business survival. The Internet and personal fitness training are burgeoning fields still in their infancy. Perhaps with time, both will become better regulated to protect the interests of the professional and the consumer. But for now, caution is the rule.
Legal analysts have defined e-commerce as “any transaction conducted over the Internet or through Internet access, comprising the sale, lease, license, offer or delivery of property, goods, services or information, whether or not for consideration” (Gulick 2002). When considering liability issues in cyberspace, personal fitness trainers (PFTs) might benefit from taking a look at legal policies on e-commerce in the medical field.
The provision of health and medical services via cyberspace is both revolutionary and problematic. Cybermedicine and cyberhealth are broad concepts, which include the establishment of a website, communicating with patients via e-mail, and allowing patients to interact with the physician and related staff via the Internet (Gulick 2002). Healthcare providers, whether medical, clinical or recreational, are utilizing this vast communicator primarily as a resource for general information, such as fitness tips, nutrition recommendations, office hours and physician biographies. Only 13% of physicians use e-mail to communicate directly with patients (Gulick 2002). The American Medical Association and the American Medical Informatics Association encourage physicians to be cautious when using e-mail because of both privacy matters and the possibility of liability due to misunderstanding (Gulick 2002).
The primary barrier to implementing cyberhealth and cybermedicine is the licensure of physicians. Physicians may practice only in the state in which they are licensed. To do otherwise is a crime. But the Internet is worldwide and knows no boundaries. Of course PFTs, who are not licensed professionals, are not subject to the same limitations as physicians. However, due to the pseudomedical nature of fitness, all fitness professionals would be well advised to follow the same cautious path as physicians.
In order for the court in another state to entertain a case against you, that court must have jurisdiction (Ellrod 2000). There are four types: (1) personal jurisdiction, (2) subject matter jurisdiction, (3) specific jurisdiction and (4) general jurisdiction. Personal jurisdiction refers to the court’s power to pass judgment on a particular person (or particular persons)—for example, the trainer and the client. Subject matter jurisdiction refers to a court’s authority over the topic of a lawsuit. For example, subject matter jurisdictional issues may be invoked by the type of injury in question or the fact that the case involves a website.
Jurisdiction may be further broken down into the legally complex categories of specific jurisdiction and general jurisdiction. Specific jurisdiction relates to claims that arise from in-state contacts, and general jurisdiction relates to claims that do not arise directly from in-state contacts. Sufficient minimum contacts for specific jurisdiction exist when a nonresident has deliberately engaged in significant activities within a state or has created continuing obligations with that state’s residents. Sufficient minimum contacts for general jurisdiction exist when a nonresident’s contacts within a state are substantial, continuous and systematic (Ellrod 2000). The legal standard by which minimum contacts are evaluated may be different for general or specific jurisdiction, but the legal effect is the same: potential liability.
Although online personal training raises many liability issues, taking some precautions can minimize your risk.
Take the following steps to establish evidence of a valid contract, assumption of risk, informed consent, and fulfillment of your legal duty as a personal trainer.
- “Snail-mail” (rather than e-mail) all contracts to your clients for them to read and sign. It is best to avoid using the “click here if you agree” type of online contract.
- After sending a contract, phone the client to review and clarify it.
- Mail regular progress reports for the client to fill out and sign. These reports document the client’s compliance with your exercise recommendations. The reports should require a signature stating that the information attested to is true and accurate under penalty of perjury.
- When posting a website, include a disclaimer stating that all users should consult a physician before beginning an exercise program and that the information provided is not intended to diagnose or treat any disease or medical ailment.
- Unless your goal is to solicit out-of-state business, make it clear that the content of your site is directed only at those who could potentially patronize your local place of business. If a toll-free number is provided, specify that it is strictly for the convenience of local patrons or clients, not a means of soliciting interstate commerce. Any ambiguity could subject you to litigation in another state.
Being aware of and educated about the complex legal issues and financial consequences of online training is essential to your business survival.
For free legal advice and information on starting an online business, visit www.bitlaw.com.