Legal Issues Concerning Online Reviews
28 September 2015
Author: Olivia O'Kane
Practice Area: Media and Defamation
Many of us now turn to the Internet to search for reviews on everything from restaurants, holidays to legal services before committing to purchasing goods and services. Consumer review websites have become part of everyday decision making and exist for almost all products and services. Online review platforms are widely available on the Internet and provide information about products, services and businesses based on ‘real’ consumer experiences. However, online reviews should be approached with caution as these review platforms are open to abuse and the reputation of many businesses have been put at risk or prejudiced upon receipt of a false negative review. The credibility of the reviews posted on these websites are fundamentally undermined when businesses begin to post false reviews for themselves or their competitors.
It has been reported that businesses are suing people who post negative comments on review websites. In a case recently heard in the UK,a criminal law attorney based in Colorado, Timothy Bussey, found himself the target of a British Internet ‘troll’ who had attached false reviews to his firm’s Google Maps profile. Amongst these were claims that Mr. Bussey was a ‘scumbag’ and that he lost 80 percent of his cases. The comments were traced to Mr. Page who lived in the United Kingdom. The reason as to why Mr. Page had chosen to attack the law firm was unclear, but the most likely explanation was a purely financial one. Mr. Justice Eady ordered Mr. Page to pay £50,000 in damages and Mr. Bussey’s legal costs.
The Australian Competition and Consumer Commission has weighed into this debate and has published guidelines for reviewers and review platforms due to the increased number of legal threats and court proceedings commenced by dissatisfied businesses. In some situations, it can cause further harm to the reputation of a business to pursue defamation proceedings as it could appear that the business is trying to silence those voicing critical opinions. Continually resorting to defamation proceedings, or threatening them, may increase the likelihood of regulatory guidelines concerning responses to consumer reviews being put in place; which has already been suggested in the UK.
There are many reviews online, both positive and negative, based on genuine and honest consumer experiences. However, many fraudulent reviews are now posted online. In 2013, nineteen firms were fined by New York authorities after posting false reviews. They agreed to cease the practice of posting fake reviews for businesses and to pay in excess of $350,000 in penalties. ‘Operation Clean Turf’ was the name given to a yearlong undercover investigation aimed at uncovering the reputation management industry, the manipulation of consumer-review websites and the practice of astroturfing. The investigation found that companies had flooded websites such as Google Local and Yelp with false consumer reviews. The local Attorney General’s office set up a yoghurt shop in Brooklyn and sought help from firms offering Search Engine Optimisation services to help boost its online presence. Some of the SEO firms offered to post fake online reviews about the shop, and created online profiles and paid for reviews from freelance writers from across the globe. The companies violated multiple state laws against false advertising and engaged in illegal and deceptive business practices by producing fake reviews.
Astroturfing involves a business paying its PR or SEO agency to boost its online reputation by posting false comments on review websites. These can be positive reviews about that particular business, or false negative reviews about a competitor’s business. Falsely representing oneself as a consumer is considered to be an unfair commercial practice under the Consumer Protection from Unfair Trading Regulations 2008. This amounts to a criminal offence which can attract an unlimited fine and/or 2 years imprisonment. The Advertising Standards Authority states that the strict advertising code prohibits advertisers from falsely claiming or implying that they are acting as a consumer, and companies should be aware that the practice of posting fake reviews is likely to be illegal and could be subject to an investigation by Trading Standards.
Astroturfing is likely to breach the UK Code of Non-Broadcasting Advertising, Sales Promotion and Direct Marketing (the CAP code). The key principles of this code state that marketing should be fair, legal, honest and truthful. The CAP code also regulates testimonials and marketers must be able to provide documentary evidence that a testimonial used in a marketing communication is genuine. The CAP code is policed by the Advertising Standards Authority who can issue reprimands and require certain advertising to be removed. Recently, the ASA adjudicated upon claims contained on the TripAdvisor website which stated that it had more than 50 million honest traveler reviews and opinions from around the world. It was challenged that the claims were misleading and could not be substantiated as TripAdvisor could not prove that the reviews were either genuine or from real travelers as it did not verify the reviews on its website. The ASA concluded that the advert was not to appear in its current form and that TripAdvisor were not permitted to claim or imply that all of the reviews contained on their website were from real travelers, or that the reviews were genuine, honest and trusted.
The Australian Competition and Consumer Commission has issued guidelines aimed at addressing fake, incentivised, misleading reviews and the possibility that these may operate to mislead or deceive consumers. Online consumer platforms and businesses are encouraged not to write or engage others to write reviews that do not reflect a genuinely held opinion, nor are they encouraged to selectively edit and remove negative reviews as both will be considered to be misleading. Online review platforms are encouraged to take steps to identify fake reviews. Incentivised reviews are permitted under the ACCC guidelines, but they must be offered equally to all consumers, regardless of whether their review is likely to be positive or negative.
Review websites now have a greater awareness of fake reviews and have access to new advances in technology. Sites such as Yelp and TripAdvisor are using filters to help eradicate false comments posted onto their websites, including a sophisticated algorithm capable of detecting fake or deceptive reviews. People change their language when they are posting a fake review, and algorithms can now automatically detect and report certain patterns in written language. It also uses other discrepancies such as multiple reviews from the same IP address to flag suspect comments. Yelp introduced a consumer alert system, with alerts appearing on suspicious Yelp business pages with links to evidence or potential review fraud and a red flag message. If Yelp finds evidence of attempts to pay for positive reviews, a 90 day consumer alert will be placed against the company.
Online review websites and services have grown in popularity and attract millions of people each year. Businesses want to engage with their customers and do so through social media in an attempt to boost sales, but it is becoming apparent that business operators may pretend to be an ordinary consumer when posting comments on review websites. A recent report found that the proportion of fake reviews posted to ‘Yelp’ had risen from 5 percent in 2006 to 20 percent in 2013, and this is expected to continue to rise. Given this increasing trend, it is only a matter of time before the UK will have to introduce guidelines similar to those issued by the ACCC which deal solely with the issue of fake, incentivised and misleading reviews online.
 The Bussey Law Firm and another v Page  EWHC 563 (QB)