India: "Review Bombing"- The Way Forward

In the hyper-connected digital world of today, there is no doubt about the fact that reviews posted online have a major impact on a consumer. In recent times, we often stumble upon situations where we can easily note as to how different sectors of business have been impacted because of either fake or negative reviews.

For instance, in 2021, the rating of a trading app, Robinhood on the Google Play Store dipped to 1 star due to negative reviews, as the app stopped its users from buying some stocks which were promoted by other entities. Similarly, Film industry is not immune to such acts of negative or fake reviews.

An act of posting negative review online with a malicious intention to lower the rating of a movie is often termed as "review bombing". Sometimes, the intention behind "review bombing" is often governed by geo-political issues. For instance, the movie, Gunday, released in 2014, although performed well on the box office but is one of the lowest rated movies on Internet Movie Database ("IMDb"). The movie suffered from review bombing by a Bangladeshi group because there were certain factual historical errors vis-à-vis creation of Bangladesh.¹ There are other examples, like Saving Christmas, The Promise, The Last Jedi, The Little Mermaid etc. which have been a victim of review bombing. While there are situations where a movie has been review bombed due to its sensitive subject matter or general conflict of opinion, but today there is a stark increase in review bombing, where the competitors are paying individuals to indulge in such acts anonymously.

However, another school of thoughts is of the opinion that the Constitution of India grants Fundamental right to speech and expression and hence, there cannot be any regulatory or judicial fetter on criticizing a movie. Hon'ble High Court of Madras in March 2023² was ceased of a matter, wherein a complaint was filed against an individual for posting negative reviews on Google Review and same was dismissed. The High Court dismissed the Criminal Revision Petition and held that mere expression of views in Google Review about the services of the Petitioner does not amount to defamation. The Court further observed that an aggrieved person can defend or attack any fake review by posting his/her reviews against such alleged fake review and can establish that such review was baseless/fake. The High Court thereafter upheld the order of the Magistrate which held that expression of one's review for the services on an online platform such as Google Review is well within the four corners of the right to free speech expressed under Article 19(1)(a) of the Constitution of India.

While there is no denial about the fact that the Constitution of India does guarantee right to free speech and expression. But whether such right can act as an immunity against review bombing which has been done with a malicious intention to disparage or denigrate the reputation of a movie? The answer is NO. Further, whether the suggestion given by the High Court of Madras to tackle fake online reviews is scalable to deal with thousands of fake or negative reviews about a movie? The answer is again NO. Hence, the question arises as to how to deal with such social media influencers and/or film reviewing vloggers who deliberately denigrate and tarnish a movie with intention of unjust enrichment by review bombing, which is often coupled with blackmail and extortion.

As per the Advertising Standards Council of India ("ASCI"), an "influencer is someone who has access to an audience and the power to affect their audiences' purchasing decisions or opinions about a product, service, brand or experience, because of the influencer's authority, knowledge, position, or relationship with their audience."¹ In the context of films, it can considered that an influencer is someone, who has an audience and affect its audiences' opinions about the experience of a film. However, on an overall review of the Code for Self-Regulation of Advertising Content in India published by ASCI, it is evident that there are no guidelines for influencers vis-à-vis movie reviewing.

Notably, on 10.06.2022, the Department of Consumer Affairs constituted a committee to develop framework on checking fake and deceptive reviews in e-commerce². Thereafter, in November 2022, the Bureau of Indian Standards ("BIS") published an Indian Standard 19000:2022 titled as "Online Consumer Reviews – Principles and Requirements for their Collection, Moderation and Publication" ("the Standards") ³. Based upon the Standards, the Department of Consumer Affairs launched a framework, for safeguarding and protecting consumer interest from fake and deceptive reviews in e-commerce which was made applicable to any organization that publishes consumer reviews online. It imposes an obligation on consumer review sites to provide reviews that can be trusted.⁴ Thereafter, in February 2023, Government of India formulated a Conformity Assessment Scheme on IS 19000:2022, to check the publication of fake or misleading reviews.⁵ Further, although, Consumer Protection (E-Commerce) Rules, 2020, which is mandatory in nature, were notified much before the afore-said framework i.e. on 23^rd July 2020, but said rules mandates that no inventory e-commerce entity shall inter alia post reviews about goods and services or misrepresent the quality or the features of any goods or services. Therefore, it can be inferred that the existing Consumer Protection (E-Commerce) Rules, 2020 might not be able to handle the menace of review bombing. Hence, it seems that as on date, although Standards do provide a mechanism to curb the menace of review bombing but the liability is still on such website which provide a platform to write such reviews and not on the influencers or film review vloggers.

Recently, the High Court of Kerela has taken some dynamic steps towards this issue while adjudicating two writ petitions¹, wherein inter alia Government of India and BIS have been arrayed as parties. Petitioners in the said writ petitions has prayed to issue a gag order directing the Respondents to ensure that the social media influencers and film reviewing vloggers do not publish any reviews of the film "Aromalinte Adyathe Pranayam" on the social media for at least 7 days from the date of release of the film and a direction to take effective steps to ensure that online movie reviews and ratings are not exhibited on online platforms.

The High Court directed the State Police to come up with suggestions, to ensure that the movie industry is not subjected to denigration on account of the illegal actions of a few people, whose intent is extortion and blackmail, which shall include possibility as to whether an individual or an entity can file a complaint against 'review bombing'. The High Court also made it clear that while formulating such protocols, the State Police should ensure that only complaints regarding cases of motivated and calculated reviews, made solely to extort and blackmail, are entertained and not those which are made bona fide.²

Thereafter, the Kerela Police formulated a protocol to deal with cases of motivated, malicious, negative movie reviews, review bombing etc. and registered one of the first cases against online film reviewers and social media platforms on the basis of a complaint filed by Ubaini E, director of the film "Rahel Makan Kora".³ This is definitely a welcome step in the correct direction which can further be fortified by the fact that on 25.10.2023, the Petitioner in WP(C) No.32733/2023 reported that on account of directions passed by the High Court of Kerela, his film, "Aromalinte Adyathe Pranayam", had been spared of review bombing and was able to generate decent revenue.⁴

The Government of India has also submitted before the High Court that it will come up with a long-term solution on the basis of Standards and it will be interesting to see as to how the Government is expanding the scope of Standards to include the issue of "review bombing".

Nevertheless, as per the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("the IT Rules"), casts a duty on an intermediary, which includes online platforms, to make reasonable efforts to cause the user of its computer resource not to inter alia host, display, upload, publish, transmit or share any information that knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature¹. Hence, it can be construed that issues like "review bombing" is broadly covered within the IT Rules. Even remedy to deal with "review bombing" can be construed to covered within the IT Rules because an intermediary, upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency, is obligated to not host, store or publish any unlawful information, which is defamatory. Further, an intermediary has to remove or disable access to such information, as early as possible, but in no case later than 36 (thirty-six) hours from the receipt of the court order or on being notified by the Appropriate Government or its agency, as the case may be.² For instance, such anonymous act of giving negative online reviews came before the High Court of Delhi in a civil suit for passing off and dilution, Livspace Pte. Ltd. & Anr. v Livspace-Reviews.com & Ors.³. The Court granted an order of ex-parte ad interim injunction against the operation of the defendant website because the entire operation defendant website was clandestine, and the purpose was to only to damage the Plaintiffs' business.

Thus, it would be prudent for a party to proceed with necessary remedies available under law depending upon the facts and circumstances of each case. For instance, where it is difficult to establish that reviews have been posted solely to extort and blackmail, then filing a criminal complaint against such an influencer might not be an appropriate course of action. However, in such cases a civil suit for defamation would be a better option to proceed.

Having said that, the following observation from the Kerela High Court made on 07.11.2023 is a way forward towards curbing "review bombing":

The reputation of individuals behind a film cannot be sacrificed at the alter of unbridled freedom of expression asserted by individuals, who act under the mistaken impression that they are not governed by any parameters/regulations, particularly when there is nothing on record to show that any of them are registered, akin to Journalists or such other service providers. Reviews are intended to inform and enlighten, but not to destroy and extort.

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Footnotes