How to comply with new laws on fake reviews

Many of the main consumer law elements of the Digital Markets, Competition and Consumers Act (DMCC) came into force on 6 April, including the introduction of new responsibilities on businesses to protect consumers from fake reviews. The DMCC also conferred potentially game changing new enforcement powers on the Competition and Markets Authority (CMA), which will now be able to investigate and impose fines on businesses directly, rather than going through the courts.

Given that the level of those fines could now amount to the greater of £300,000 or 10% of annual global turnover, now seems an opportune time to advise on what tech businesses should do to stay in the CMA’s good books.

What’s the deal with fake reviews?

Do you host consumer reviews of your products/services on your own website, app or other marketing facilities? Or do you encourage or incentivise users to review your products/services on third party websites, apps or marketing facilities? If so, read on.

Before we go further, we need some key terminology:

• Consumer review:  A review of a product, trader or any other matter relevant to a transactional decision. It can take different forms including text, speech and graphic representations such as a star rating.
• Fake review:  A review that purports to be, but is not, based on a person’s genuine experience. Fake reviews are usually positive, artificially boosting a product or trader’s rating in comparison to its competitors.
• Consumer review information: Information that is derived from, or influenced by, consumer reviews. This means things like overall ratings, review counts and rankings.

You should also be made aware that the following are now automatically considered unfair commercial practices under the DMCC and could therefore result in sanctions, although the CMA has promised an initial three month grace period where it will “support businesses with their compliance efforts rather than enforcement” in this area:

1. Submitting or commissioning another person to submit:

• • A fake consumer review. 
  • A consumer review that conceals the fact that it has been incentivised. 

2. Publishing consumer reviews, or consumer review information, in a misleading way. For example: 

• • Failing to publish, or removing from publication, negative consumer reviews while publishing positive ones.
  • Giving greater prominence to positive consumer reviews over negative ones.
  • Omitting information that is relevant to the circumstances in which a consumer review has been written (including that a person has been commissioned to write the review).

3. Taking reasonable and proportionate steps to prevent the publication of: 

• • Fake consumer reviews.
  • Consumer reviews that conceal the fact they have been incentivised.
  • Consumer review information that is false or misleading.

How to comply with the DMCC

Don’t commission fake reviews. Here are some examples:

• Sharing a post on social media asking for five-star reviews in exchange for free products.
• Asking customers to buy products and informing them they will be refunded when they leave a positive review.
• Contacting a customer who has left a negative review and offering them a refund and/or a gift card if they amend their review to remove any negative commentary (so that it is no longer reflective of their genuine experience).

Don’t offer incentives to consumers to leave reviews, unless you:

• Make it clear that the review should reflect their genuine experience and that they MUST disclose the fact their review has been incentivised.
• Clearly and prominently disclose when a consumer’s review was incentivised (eg, by labelling the review as an advert).
• Distinguish incentivised reviews from other reviews and take appropriate steps to prevent incentivised reviews from misleading consumers (eg, not counting the review towards a product’s or trader’s overall rating or ranking).

Don’t publish consumer reviews in a misleading way. Here are examples of what would fall foul of this:

• Suppressing negative reviews (eg, by editing, withholding or removing such reviews).
• Treating negative reviews as a complaint and choosing not to publish them.
• Cherry picking positive reviews for publication over negative ones (either through suppressing negative reviews or by encouraging just those who are satisfied to leave reviews).
• Presenting reviews of a different product as if they related to the product a consumer is considering buying.

In addition to refraining from the kinds of activity listed in paragraphs 1-3 above, take the following positive steps:

• Carry out a risk assessment of the likelihood that consumers will encounter banned reviews, or false/misleading consumer review information, on your media. Note, this should be kept under review rather than being treated as a one-off exercise.
• Where a risk is identified, establish systems, policies and procedures to detect, investigate and respond to banned reviews or false or misleading consumer review information.
• Create a reporting mechanism for the public to report problematic reviews.
• Create and publish a policy which explains how you will comply with the law above, including (if applicable) your approach to incentivising reviews and how you disclose these.

Also be aware (pricing)

In addition to the new law on reviews, you should also be aware that the DMCC tightens up the law on misleading pricing practices, for example in relation to so-called "drip pricing". This is where a lower price is used as bait early in a sales process to get consumers interested, with unavoidable additional charges only disclosed late on in the purchase process. If you haven’t taken action to ensure compliance with the consumer protection aspects of DMCC yet, better late than never!