False Internet product reviews – Polish and EU law

Consumer opinions on a given product or service are a significant influence on sales on the Internet. Therefore, they should be as true and reliable as possible. This is to be helped by a new EU directive which expressly prohibits the posting of false opinions and paying for them, as well as misleading mechanisms for verifying the veracity of opinions.

UK Competition Authority (CMA)

In early January 2020, the CMA announced that as a result of the ongoing investigation, Facebook and eBay had formally committed to tackling the widespread trade in false and misleading product reviews on these platforms. In response to the authority’s concerns, the platforms have removed hundreds of such profiles and committed to putting in place mechanisms to prevent the offering and sale of such services. This should be considered a half success. The trade in fake product reviews is a symptom of a much more serious problem with the unfair manipulation of consumer buying behaviour. [1]

Directive on better enforcement and modernisation of EU consumer protection rules

Directive (EU) 2019/2161 of the European Parliament and of the Council, provides, among other things, for a new approach to supposedly free services for which we actually “pay” with personal data, regulation in the area of dual product quality and transparency requirements for search results. The specific provisions of the directive also concern false product reviews. The EU legislator has opted for a two-pronged approach. Firstly, where a trader provides access to consumer reviews of products, the Directive requires that it is relevant information whether and how the trader ensures that the published reviews come from consumers who have actually used or bought the product. The omission of such information or its communication in an incomprehensible way may constitute a misleading omission. Operators of shops or platforms where the products offered are subject to buyer reviews will therefore have to indicate in an understandable way whether they apply actions to verify the veracity of the reviews and, if so, which ones.[2]

The main objective of the above-mentioned Directive is therefore to introduce a number of changes which aim to introduce specific principles at the EU level to guarantee the protection of the rights of consumers who purchase goods or services on the Internet. The new regulations aim to ensure full transparency of purchase conditions by eliminating aggressive and misleading marketing and sales practices, which are increasingly common in the era of intensive development of the e-commerce market. The changes also assume the introduction of far-reaching and effective sanctions for breaches of consumer protection provisions. The new regulations are part of a package concerning the so-called “new deal for consumers”.

A New Deal for consumers

The ‘New Deal for consumers’ package is a series of regulatory changes prepared by the European Commission. It aims to introduce a system at EU level to guarantee consumer protection by introducing greater transparency in traders’ dealings with consumers and consistent enforcement in the event that consumers are cheated or exposed to unfair practices. Thanks to the new rules, consumers will be guaranteed certainty as to what they are buying, from which entity they are buying and on what terms they are concluding a transaction. The changes are intended to create a legal environment that allows consumers to make informed purchasing decisions, excluding factors that could potentially mislead them or induce them to behave differently from what they would have done if there were objective circumstances and reasons for doing so.

False opinions as an unfair market practice

Directive 2019/2161 makes it clear in its recitals that it is an unfair commercial practice under the legislation to mislead consumers by claiming that opinions about a product have been posted by consumers who have actually used or bought that product, where no reasonable and proportionate steps have been taken to ensure that they originate from such consumers.[3] This practice is also to be prevented by prohibiting the posting or commissioning of false consumer opinions or recommendations by another legal or natural person, or the distortion of consumer opinions or recommendations by Internet users, for the purpose of promoting products.