With more consumers turning to online shopping during lockdown, the Competition and Markets Authority (CMA) has announced an investigation into a number of major websites to determine whether they do enough to detect, investigate and respond to fake and misleading reviews on their sites.
The investigation is another example of the CMA's increasing focus on consumer protection and online practices, and highlights the level of responsibility that is expected of major online platforms and websites.
The investigation forms part of a CMA project aimed at tackling fake online reviews announced in June 2019, which arose due to concerns about a thriving marketplace in fake and misleading online reviews for popular shopping and review websites. It followed a 2015 Call for Information that, in addition to concerns over fake reviews, revealed websites not publishing negative reviews, and businesses paying for endorsements in blogs without this being made clear to consumers. As we reported last year, the CMA has also investigated whether social media influencers are clearly posting when they have been paid for their endorsement.
The recently announced investigation into fake and misleading reviews will focus on:
- Suspicious reviews – e.g., a single user reviewing an unlikely range of products/services
- Manipulation of presentation of reviews – e.g., combining positive reviews for one product with those of another
- How the sites investigated approach payments/incentives to review
The CMA has previously taken action against businesses offering such reviews for sale. Despite the Consumer Protection from Unfair Trading Regulations 2008 only applying to B2C situations, the CMA and the European Commission have made clear that online platforms will often fall within the definition of "trader" under Article 2(b) of the Unfair Commercial Practices Directive. As a result, these platforms have an obligation to act with professional diligence and not mislead consumers.
Whilst the CMA has not yet alleged any illegal activity by the relevant websites, nor suggested that the websites involved intentionally allow this content to appear on their websites, it says it will take enforcement action to secure any changes to websites, should this be necessary. As highlighted in our recent article, this can now include the CMA making an application to Court for an 'online interface' order, which could for example, block access to a website or part of it.
In the meantime, the CMA has obtained commitments from Instagram (operated by Facebook) to tackle the risk of fake online reviews on its platform. These follow commitments obtained from Facebook and eBay in January 2020. Instagram's commitments are to:
- update and revise its Community Guidelines by 31 July 2020 to clarify that it prohibits fake and misleading review content
- take down the content that the CMA had identified and brought to its attention
- remove similar content that it identified itself
- put in place robust systems to detect and remove such material from its website
Instagram has already removed 76 profiles being used to trade or facilitate the trade of fake and misleading online reviews.
Alongside the CMA's remit in relation to breaches of consumer protection laws, the Advertising Standards Authority may also be asked to investigate concerns about fake reviews, and has published guidance for advertisers on testimonials and endorsements. For example, it notes that encouraging customers to post positive reviews and amending/deleting negative reviews may constitute breaches of the advertising codes. However, removing genuinely offensive comments, personal information or potentially illegal content is likely to be legitimate. We discussed the various approaches that businesses faced with fake negative reviews can take in this recent article on 'social media trolls'.