On 1st January 2023, a number of regulations implementing Directive 2019/2161 - Omnibus - came into force in Poland. Many laws were amended in order to bring Polish consumer protection law in line with the requirements established by the European Union. Regulations protecting consumers have been significantly tightened.
A survey commissioned by the Polish Office of Competition and Consumer Protection reveals that 93% of online shoppers consider the opinions of other shoppers. The influence of other customers' evaluations is important when making the final purchase decision. The Polish Office is aware of this and, in order to eliminate unfair practices and violations of the collective interests of consumers, it constantly monitors the market - especially online shops and marketplace platforms.
Penalties for trading in fake opinions
Companies trading on the Internet with false opinions were controlled by the Office even before the implementation of the Omnibus Directive, in 2022. Irrespective of the Directive, such activity constitutes an unfair market practice in Poland and was prohibited even before the Directive came into force. As a result of the inspections, it turned out that many companies do not comply with the new requirements, e.g. they post on their websites opinions about products/services that do not come from their actual buyers.
The Office imposed financial penalties on entrepreneurs trading in false opinions and ordered them to cease such practices. The companies in question were those which offered to post positive or neutral reviews of shops, e.g. on social networking sites such as Facebook, marketplace portals, on Google maps and in search engines. These reviews were commissioned or came directly from the commissioning company and were published without testing the products first. The Office found that such reviews misled consumers about the reputation of the companies and the products and services they offered.
Checks for dark patterns
The results of an audit carried out by the European Commission and the Consumer Protection Cooperation network show that almost 40% of the 399 controlled online shops from various industries were using at least one of the three dark patterns so checked: fake timers, deceptive interface, hidden information. In Poland, as from 1st January 2023, any trader who publishes reviews online must explain how they verify their authenticity.
The Polish Office has audited the shopping processes used by online shops (including through apps) operating on the Polish market. In many cases, it found dark patterns, i.e. practices that exploit knowledge of users' behaviour to influence their decisions, e.g. forcing unintended actions by consumers. These include, for example, automatically adding unwanted products to the shopping cart, publishing in small print a clause agreeing to provide personal data close to the 'next' button.
The President of the Office points out that by publishing false reviews on the Internet, consumers are misled and their purchasing decisions are distorted. It is also practice which is unfair to competitors - honest entrepreneurs who do not buy reviews - they may, for example, be positioned lower in search engines.
What are unfair market practices?
In Poland, an unfair market practice is an action by a trader towards consumers which is contrary to accepted principles of honest trading, and materially distorts or is likely to distort the market behaviour of the average consumer before, during or after the conclusion of an agreement (e.g. purchasing a product). An unfair market practice can also be misleading, i.e. an action which in any way causes or is likely to cause the average consumer to take a decision to enter into contract (e.g. to buy a product) which he would not have taken otherwise. Such practice can also be an omission, e.g. withholding or failing to communicate in a clear, unambiguous or timely manner, material information relating to a product.
The use of unfair market practices may infringe collective interests of consumers. In Poland, a financial penalty of up to 10% of turnover may be imposed on an entrepreneur who engages in practices infringing collective interests of consumers.
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