At the
end of last month, the Dutch Authority for Consumers and Markets (ACM) announced
that it would be taking action against fake reviews, fake likes, and fake
followers active on the Internet (here).
The ACM identified these practices on platforms such as Facebook, Instagram,
YouTube, and Google. This puts social media and influencer marketing – and
associated practices perceived as harmful for consumers - in the spotlight. According
to the ACM, these practices are harmful for consumers since they undermine the
consumers’ confidence in the market, and they provide consumers with unreliable
information. This is an important step in the regulation and enforcement of
legal rules regarding online review mechanisms. It is not the first time that
the ACM devotes attention to this problem. In 2017, the ACM published a study
regarding online reviews mechanisms and suggested that their transparency should
be increased to fight reliability concerns. The decision to take action against
fake reviews and other misleading practices follows up on the guidelines on the
protection of the online consumer developed by the ACM earlier this year (here).
In these guidelines, the ACM explained that, among other aspects, a business cannot
post fake reviews or instruct others to do so nor can it highlight only
positive reviews or delete negative reviews. The ACM stated that it will
reprimand businesses, influencers or other market participants that offer
‘misleading endorsements’ and, in case of refusal to stop their illegal
activity, the ACM admits the possible imposition of fines.
Although
online review-related commercial practices are covered by existing EU
legislation (such as the E-Commerce Directive and the Unfair Commercial
Practices Directive), the enforcement of such rules in this context is not frequent,
although growing in the last couple of years. However, fake online reviews (or
misleading online reviews that, not being necessarily fake, are biased due to,
for example, social pressure, leading to a problem of reputation inflation) are
a problem that affects many consumers. For example, a 2014 study conducted at
the request of the European Commission (here)
estimated that around 82% of consumers consult online reviews before purchasing
a good. The EU consumer law regulation of online review mechanisms has been
recently strengthened by the Omnibus Directive that, for the first time,
explicitly imposed duties on traders regarding online reviews (see our blogpost
on the Directive here).
It will be interesting to see how Member States will transpose these measures
and what framework will be applicable to online reviews at national level (e.g.
competition law, contract law, advertising law).
