Following a period of extensive industry and community consultation, the Australian Competition & Consumer Commission (ACCC) yesterday released its guidelines for managing and using online reviews, Online reviews: a guide for business and review platforms (Guide).
The development and publication of the Guide recognises the important role of product reviews to both consumers and businesses, and increasing concerns of the ACCC of the capacity for such review platforms to be abused by people or businesses posting fake reviews (negative or positive reviews), editing reviews, or providing incentives to solicit particular types of reviews.
When announcing the release of the Guide on Tuesday, 3 December 2013, ACCC Deputy Chair Dr Michael Schaper observed that, "Online reviews are an increasingly popular resource for consumers purchasing goods or services. Many businesses rely on these reviews to promote their businesses, however, some unscrupulous businesses are taking advantage of consumer trust in online review".
HOW THE GUIDE APPLIES TO YOU
The Guide represents an all-encompassing approach by the ACCC and applies to all people and businesses involved in publishing online reviews, including:
- those who write reviews;
- businesses that solicit reviews of their goods or services; and
- websites that publish product reviews (whether of their own goods and services, or those of a third party).
The ACCC has also adopted a broad definition of what it considers to be a "review platform", which includes blogs, "or other sites which publish reviews as discussion threads or in another format...". This means that social media pages of businesses that allow for the collection or display of reviews, such as a Facebook page, would be within the scope of the Guide and the principles of the Guide would apply equally to those platforms.
The guiding principles set out in the Guide are:
Principle 1 - Be transparent about commercial relationships.
Principle 2 - Don't post or publish misleading reviews.
Principle 3 - Remember that omitting negative reviews can be as misleading as posting fake reviews.
In seeking to address conduct that may influence the nature of reviews, and to ensure the integrity of online review platforms, the Guide warns that people and businesses risk breaching the Competition and Consumer Act 2010 (Cth) (CCA) if they:
- fail to adequately disclose to consumers that a commercial relationship has impacted upon the content or presentation of reviews;
- fail to take appropriate steps to detect and remove fake reviews;
- do not disclose that an incentive has been offered for particular reviews;
- write or publish a review of their own business, as if they were a consumer;
- engage any person (whether individual, a search engine optimisation firm or other public relations firm) to deliver reviews by persons who are purporting to be, but who are not in fact, genuine consumers.
The principles set out in the Guide are in addition to the existing provisions of the Australian Consumer Law (in schedule 2 to the CCA) that would relate to online user reviews, including:
- section 29(1)(e) of the Australian Consumer Law which states that a person must not, "make a false or misleading representation that purports to be a testimonial by any person relating to goods or services"; and
- section 18(1) of the Australian Consumer Law which prohibits engaging in conduct that is misleading or deceptive or is likely to mislead or deceive.
WHAT SHOULD BUSINESSES DO NOW?
In light of the ACCC's focus on online review and the release of the Guide, any business that collects or publishes user reviews online should now analyse its procedures for obtaining and publishing user reviews, including by:
- examining any campaigns or programs it has in place for incentivising user reviews;
- taking steps to notify consumers where a commercial relationship has impacted upon the content or presentation of any reviews;
- developing and implementing mechanisms and procedures for detecting and removing fake reviews;
- ensuring it does not write or publish a review of their own business, purporting to be a consumer; and
- considering whether it engages (or has ever engaged) any person to deliver reviews purporting to be, but who are not in fact, genuine consumers.
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.