23 March 2023

Fake Reviews; Really Misleading

A webshop may not claim that reviews are authentic if this has not been investigated.
Netherlands Media, Telecoms, IT, Entertainment
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A webshop may not claim that reviews are authentic if this has not been investigated. And the posting of fake reviews by webshops (or having them posted) is now misleading by definition. This follows from the new e-commerce rules that apply since May 28, 2022 as a result of the implementation of the Modernization Directive (2019/2161).

But how does one prove that a review is fake or real? The Advertising Code Committee recently ruled that by presenting a simple Google search with no results on the identity of a reviewer, the complainant was already casting serious doubt on the authenticity of reviews, now that (so says the RCC) this is the only information and/or search option a complainant has. So now it is up to the advertiser to prove that the reviews are real. In this case the advertiser did not provide a substantiated defense. This led to the decision that the reviews are misleading (at the time still based on the rules before the implementation of the Modernization Directive).

This ruling raises a lot of questions about the practical implementation of an advertiser's burden of proof. Not everyone provides their first and last name when writing a review. Some reviewers remain anonymous. But even with a common name like John Smith, it is unclear who posted the review.

The ACM has far-reaching administrative powers to investigate the authenticity of reviews. An advertiser does not. A system where consumers can only leave a review after purchase via a link in an email can offer a solution. If an advertiser does not use such system, it can be very difficult to rebut doubts about the authenticity of the review.

The rule is clear: fake reviews are misleading by definition. The practical implementation still raises many questions that will hopefully be answered soon.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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