It is estimated that £23 billion of online purchases of goods and service every year are potentially influenced by online reviews. There is an entire business model which caters for companies who wish to pay for fake reviews of their goods or services. Fake reviews can affect not only consumers who may be misled but also businesses who do not adopt such practices. Although these fake reviews can amount to unfair commercial practice under the Consumer Protection from Unfair Trading Regulations 2008 (CPR), enforcement action has thus far proven difficult. The Competition and Markets Authority (CMA) which enforces the CPR is currently faced with the costly and lengthy process of taking individual contravening companies to court and, in each scenario, proving that the practice causes or is likely to cause the average consumer to take a different transactional decision. However, the government has highlighted this as an area of concern and reform may be on the way as part of a government consultation on proposed reforms to competition and consumer policy.
What has been proposed?
One item under consideration as part of the consultation is explicitly prohibiting the commercial practice of commissioning fake consumer reviews. This proposal, which would still allow companies to pay for or incentivise reviews in specified circumstances, takes into account the key distinction between those who are commissioned to provide genuine reviews, receiving payment or free products in return for submitting honest feedback, and those reviews which are fake and written either without viewing the product or with the contents of the review being dictated by the company. The government recognises that a carefully balanced approach needs to be taken.
The proposed additions to Schedule 1 of the CPR, which would mean carrying out these practices would be automatically unfair in all circumstances, are:
Commissioning or incentivising a person to write and/or submit fake consumer review of goods, services, or digital content; and
Hosting consumer reviews of a good or service without taking reasonable and proportionate steps to ensure that they originate from consumers who have actually used or purchased that good or service.
Adding these to Schedule 1 is significant as there would no longer be any need for the practice to cause or be likely to cause the average consumer to take a different transactional decision for it to be unlawful. Therefore, commissioning or hosting fake reviews would be automatically unfair. This would make it easier for regulators like the CMA to enforce the law.
These proposals target both the businesses who host the reviews and those businesses who commission them. There is further scope within the proposals under consultation to prohibit the commercial practice of traders offering or advertising to submit, commission or facilitate fake reviews.
The government consultation seems targeted at trying to strike the right balance to protect not only consumers but also businesses who may benefit from genuine customer reviews or be disproportionately be affected by fake reviews.
The government consultation is open until 1 October 2021 and consumers, businesses and those with knowledge and expertise in competition and consumer law and policy are invited to submit their views. More details can be found here
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