How can you fight against fake reviews

More consumer protection in online retail: the fight against fake reviews

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Guest contribution by Dr. Martin Gerecke and Nils Graber

24.11.2020

In the future, the legislature wants to better protect consumers from false ratings in online retail. That is good for the customers, say Martin Gerecke and Nils Graber. But more would have been possible for the dealers.

Reviews and recommendations from consumers are an important advertising opportunity for companies and an important source of information for potential customers - their importance, especially in online trading, is growing.

With Directive (EU) 2019/2161, the European Union has therefore long set itself the goal of combating falsified or manipulated consumer reviews. The draft bill published by the Federal Ministry of Justice and Consumer Protection (BMJV) at the beginning of November implements parts of this guideline in the Act against Unfair Competition (UWG) and focuses on the role of online platforms.

Platform operators only have to inform

According to the new Section 5b (3) UWG-E, companies must in future inform whether and how they ensure that the reviews they publish come from consumers who have actually purchased or used the rated goods or services.

At first sight there is no obligation to provide measures to check the authenticity of consumer reviews. According to the wording of Section 5b (3) UWG-E, companies are only obliged to be transparent: If they do not have any measures such as automated filter systems or individual test processes in place, they must inform about this fact.

If measures are taken, the entrepreneur must provide information about this according to the will of the legislature. Information is required about which processes and procedures are used, how evaluations are dealt with as part of the review process and according to which criteria evaluations are sorted out.

Duty or no duty?

In its justification, the BMJV comes to the conclusion that the draft does not oblige companies to take measures to check the authenticity of reviews. Inactive companies therefore have very little effort to meet the requirements. But does the new version of the UWG actually not regulate such an obligation?

The transparency requirement of § 5b paragraph 3 UWG-E is supplemented by two new prohibitions contained in the appendix to § 3 paragraph 3 UWG (so-called black list, per se prohibition without relevance or evaluation criteria).

While No. 23c forbids commissioning and displaying false reviews, No. 23b addresses the misleading about the authenticity of consumer reviews due to the lack of existing test systems. According to this, "the assertion that reviews of a product or service come from consumers who have actually purchased or used this product or service without appropriate and proportionate measures being taken to check whether the reviews actually come from such consumers" is inadmissible.

Test measures create trust

As a rule, every rating is accompanied by the claim that the person who created it describes an authentic experience. A company that does nothing to verify the authenticity of reviews can only act lawfully if it does not make that claim. It would also have to communicate openly that the reviews could come from consumers who have not purchased or used the goods or services at all.

However, the authenticity of consumer reviews, which ideally reflect a customer's positive experience, is the main reason why companies use them to advertise. No company will voluntarily admit that it has not made an effort to verify the authenticity of the reviews. Even though the draft bill on paper does not oblige anyone to provide test measures, the new regulations will still have the effect of an obligation in practice.

Welcoming from the consumer's point of view

The regulations allow consumers to hope that it will be easier to check the authenticity of reviews. In the future, companies must be proactive in order to earn the trust of consumers in their rating system. You can no longer rely on just taking internal measures. It is required that the platforms provide information on how the reviews are checked, which reviews are published, whether individual reviews have been sponsored or influenced and whether a distinction is made between positive and negative reviews.

There are no requirements with regard to the form, so that the principles of Section 5a (2) UWG apply: Access to the information must not be thwarted or made more difficult by hiding it in the middle of other information. It must also be understandable for the average consumer.

From the consumer's point of view, it is also positive that the verification of compliance with suitable measures is simplified. This automatically leads to an increase in the level of protection. While in the past measures were only checked on the occasion of specific misleading evaluations, the transparency requirement now creates an abstract control option.

Consumer protection organizations and competitors can now check whether a platform or a competitor is taking action and whether these are appropriate and proportionate. Experience shows that, especially in the early days, the new obligations are carefully observed and they are also demanded in and out of court.

Platforms find it difficult to defend themselves against fake reviews

Regrettably, however, the draft bill fails to take into account one important aspect of combating fake reviews: the strengthening of the scope for action for platform operators. The Federal Cartel Office (BKartA) already stated in its recently published sector study on user reviews that even committed portals do not always succeed in preventing new, inauthentic reviews.

This is due, among other things, to the legal situation in Germany, which makes it difficult for the platforms to fight unfairly acting commercial review brokers or other creators of fake reviews, according to the BKartA. These regularly evade prosecution by relocating their headquarters abroad or only working through chat groups.

A criminal prosecution, as it is possible in Italy or Great Britain, is out of the question in Germany, and a civil prosecution fails because the portals are not competitors of the evaluation brokers. Since in some cases there is no obligation to provide information to the platforms, it is difficult to identify unfairly acting review brokers. The draft bill did not take advantage of the opportunity to support committed platforms in attempting to take action against the creators of fake reviews.

Do dishes form the gold standard?

The draft bill leaves platforms with consumer ratings without clear instructions. The only thing that is clear is that measures must be taken against fake reviews and that they must be made transparent. The question of whether they are also "appropriate and proportionate" and thus meet the requirements of number 23b of the appendix to Section 3 (3) UWG-E will be answered by case law over the next few years. As the judicial review of third party measures has been simplified for competitors and consumer protection organizations, many court decisions can be expected in this area in the future.

From the consumer's point of view, it remains positive that in future they will be able to clearly see whether and what a company is doing to check ratings. This can positively increase consumer confidence in a rating system. The extent to which a "gold standard" for filter systems developed by case law will lead to fewer fake reviews in online retail is an open question.

The authors:

Dr. Martin Gerecke is an attorney at CMS Germany and advises companies and individuals on copyright law, press and expression law as well as new media law.

Nils Graber is a trainee lawyer at the OLG Celle and at CMS Germany in the legal position.