New duties to tackle fake and misleading reviews

We’ve previously highlighted the changes to consumer law being introduced in stages by the Digital Markets Competition and Consumers Act 2025 (DMCCA).  And we have recently published a summary from Jason Freeman, CMA director for consumer law on the new CMA direct enforcement regime, due to come into force imminently.  A further part of the changes include from April 2025 the replacement and updating of the unfair trading regime currently found in the Consumer Protection from Unfair Trading Regulations 2008.

The CMA has been consulting on draft guidance which sets out in detail the CMA’s view of the obligations under the new regime and the steps that organisations should take to comply.  

We have prepared a briefing on the potentially wide-ranging fake and misleading review provisions.  The briefing considers the terminology including the potentially broad scope of what may amount to a “review” and a “fake review”, as well as the range of activities that the provisions apply to, such as suppressing negative reviews.  As well as measures targeting the submission or commissioning of fake reviews or reviews that conceal that they have been incentivised, there are also specific requirements applicable to those who “publish” such reviews or “consumer review information”.

Under the legislation “publishing” includes disseminating, or otherwise making such reviews or information available, by any means.  Aside from prohibiting various practices in this area, the legislation places a duty on all “publishers” to take reasonable and proportionate steps to prevent such publication and remove infringing reviews/information.  The duty also applies in relation to incentivised reviews which conceal the fact that they have been incentivised.  The draft guidance suggests that this duty might, depending on context mean that institutions that host reviews need to have a public facing policy on what steps they are taking to address the issues with reviews which will need to be in place when the legislation comes into effect – expected April 2025.

As flagged in our briefing, the draft guidance sets out in detail the CMA’s view of what reasonable and proportionate steps may be required.  
 
Given the breadth of terminology like “consumer review” and “consumer review information” and the likely approach indicated in the CMA draft guidance, whilst they may not be the main intended target of the legislation it is possible the regime applies to matters such as:

• student quotes/endorsements about their course or institution in website/prospectus information;
• aggregated student survey information intended to assist prospective students in their decision-making;
• any incentives offered to students in relation to the above.

In due course the CMA may provide more specific information in an update to its guidance to the higher education sector, but this is likely to take time and institutions should review their compliance including what steps are “reasonable and proportionate” in their specific context ahead of implementation in April.  The exact date is to be confirmed but may be 6 April.  

Other changes due to come into effect in April include:

• An expanded definition of “vulnerable consumer”
• Measures to tackle “drip pricing”
• Reforms to consumer law enforcement, including new powers to impose substantial civil fines

 More detail on these is contained in our earlier blog.
 
If you require assistance with reviewing your compliance or any other issue connected with the DMCCA please contact Katrina Anderson or Kate Allan. 

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