Fake reviews: In Google we (can now) trust?

After a long running investigation, Google has provided binding undertakings to the CMA regarding reviews on its site. The timing of these undertakings is unlikely to be coincidental: the consumer protection provisions of the Digital Markets Competition and Consumers Act 2024 (the DMCC Act) which will confer enhanced enforcement powers on the CMA, and restate and reshape the prohibitions on fake reviews, are expected to be implemented in the coming months. In this blog, we look at the CMA’s work in relation to online reviews over recent years and the Google investigation more specifically. We also consider what other companies, especially digital platforms, can (and should) draw from the Google undertakings and the CMA’s draft guidance on unfair commercial practices, having regard to the higher compliance stakes ushered in by the DMCC Act.

The back story 

The CMA has had its eye on online reviews for some time. Ten years ago, the CMA issued a call for information on the use of online reviews and endorsements. Its subsequent report confirmed that the CMA had found evidence that reviews formed an important source of information for customers but that there were a number of concerns about the potential for reviews and endorsements to mislead consumers and distort their decisions. This included the posting of fake reviews, failing to publish negative reviews and businesses paying for endorsements in blogs and other online articles without this being made clear to consumers.

To address these concerns, the CMA issued guidance in June 2015 for businesses on compliance with consumer protection law for online reviews and endorsements. It also launched consumer protection investigations against three marketing companies, MYJAR, Starcom Mediavest and TAN Media in June 2015, which resulted in all three parties providing undertakings to the CMA in April 2016 that they would ensure all advertising and other marketing in articles and blogs are clearly labelled or identified as distinguishable from the opinion of a journalist or blogger.

The CMA’s focus over time naturally turned to digital companies and, following ‘web sweeps’ conducted between November 2018 and June 2019, the CMA launched a programme of work aimed at tackling fake and misleading online reviews. In January 2020 the CMA accepted commitments from Instagram, Facebook and eBay on fake reviews, before carrying out a ‘preliminary’ investigation into several unnamed ‘major websites that display online reviews’ in May 2020, which assessed several platforms’ internal systems and processes for identifying and dealing with fake reviews. This led to the detection of specific concerns which resulted in formal probes into Google and Amazon in June 2021.

The Google investigation 

At the time of launch, the CMA stated in a press release that it had concerns about whether Amazon and Google had been doing enough to:

• Detect fake and misleading reviews or suspicious patterns of behaviour. For example, where the same users have reviewed the same range of products or businesses at similar times to each other and there is no connection between those products or businesses – or where the review suggests that the reviewer has received a payment or other incentive to write a positive review.
• Investigate and, where necessary, promptly remove fake and misleading reviews from their platforms.
• Impose adequate sanctions on reviewers or businesses to deter them and others from posting fake or misleading reviews on their platforms – including those who have published these types of reviews many times.

After a long period without any update, the CMA announced on 24 January that it had accepted binding undertakings from Google. These require Google to:

• carry out detailed risk assessments annually and before making significant changes to the site;
• establish thresholds for removal of reviews (and keep them under review);
• facilitate reporting of fake reviews by users and priority flaggers (which include Trading Standards), including by creating publicly accessible reporting mechanisms;
• establish and apply sanctions for businesses benefiting from fake reviews which include: 
  • alerting clearly and prominently to consumers that fake reviews have been posted; 
  • blocking any further reviews being posted; and 
  • for repeat offenders, removing access to all existing reviews; 
    
    in each case for increasing periods (in the first instance for a period of at least 30 days, increasing to 60 and 180 days);
• monitor its activities in relation to fake reviews and submit internal evaluations to the CMA accordingly, at least once yearly; and
• appoint a compliance officer to be accountable for ensuring Google’s compliance with the undertakings, providing information and advice to Google on compliance and acting as the main contact point for the CMA.

No updates have, as yet, been announced in relation to the Amazon investigation.

The DMCC Act

The timing of these undertakings may be no coincidence, given the major changes to the UK’s consumer protection law in Part 3 of the DMCC Act that are due to be implemented imminently. 

In particular, the DMCC Act includes new, reinforced provisions specifically relating to fake reviews (which also make it illegal to facilitate the publication of fake reviews). In particular, the following have been added to the ‘blacklist’ of unfair commercial practices, which are automatically considered unfair and thus automatically prohibited, regardless of their potential impact on consumers:

• submitting or commissioning fake reviews or reviews that conceal the fact they have been incentivised, 
• publishing (including by intermediaries such as search engines, online marketplaces and social media) consumer reviews or consumer review information in a misleading way, 
• offering to submit or commission fake reviews or concealed incentivised reviews for traders,
• offering services that facilitate the submission, commissioning or publication of banned reviews and information; and
• publishing or providing access to reviews without taking such reasonable and proportionate steps as are necessary to prevent and remove from publication banned reviews and false or misleading consumer review information (emphasis added).

In this context, a publisher includes not only a trader (eg publishing a review on their website) but also an intermediary such as search engines, online marketplaces and social media. 

In relation to the last banned practice, the CMA’s draft consultation guidance on unfair commercial practices indicates that there is unlikely to be a ‘one size fits all’ approach to satisfy the requirement to take ‘such reasonable and proportionate steps as are necessary’ but that it will expect ‘all publishers […] to have a clear policy on the prevention and removal of banned reviews and false or misleading consumer review information, and in addition assess the risks of such material appearing on their media and take such further proactive steps as are reasonable and proportionate to the need identified. Publishers will need to ensure that the steps they take are designed and applied for the purpose of preventing and removing these reviews and information, that they regularly evaluate the effectiveness of these steps and that where they identify inadequacies, they address them.’ 

The CMA publicly confirmed in its January webinar on the unfair commercial practices consultation that businesses which publish consumer review information such as an icon indicating how products/services are ranked by consumers (e.g. a five-star rating, taken from a third party site, such as a consumer review platform), will also be caught by these provisions. In this case, businesses have been advised by the CMA that they cannot simply rely on the compliance policies of the sites which they reference, though the current draft guidance does not provide details of how businesses throughout the consumer review supply chain can ensure compliance in practice.

The draft guidance outlines the general steps required of publishers as including requirements to:

• put in place a prevention and removal policy which clearly prohibit fake reviews and are readily available to users;
• conduct regular and comprehensive risk assessments; 
• take proactive steps to identify banned reviews and avoid the presentation of false or misleading consumer review information (detection);
• have a process in place for conducting investigations in response to suspicious reviews and information they have detected or which has been notified to them; 
• where it is determined that content constitutes a banned review or false or misleading consumer review, to take steps to protect consumers; and
• conduct regular assessments of the effectiveness of their prevention and removal processes.

Perhaps unsurprisingly, these steps closely mirror the commitments provided by Google last month.

The DMCC Act also confers on the CMA new, robust, direct enforcement powers. These include the ability to directly impose financial penalties of up to 10% of a firm’s global turnover as well as directions to comply with enhanced consumer measures, including redress measures in favour of affected consumers.

It is currently anticipated that the relevant provisions of the DMCC Act (including those relating to online reviews outlined above) will take effect in Spring 2025 and, while they do not have retrospective effect, the draft CMA guidance indicates that past behaviour may impact on the choice to impose financial penalties, as well as their level. Although breaches of undertakings given prior to the implementation of the DMCC Act will not attract penalties as a general rule, the current draft guidance suggests that where a breach of undertakings agreed prior to commencement constitutes a relevant infringement under the DMCC Act, the CMA may take enforcement action for that conduct under the new or old law, and the conduct may be considered continuing conduct.

Key takeaways 

Once the DMCC Act provisions are in force, the compliance stakes for other platforms and digital players will be higher given the CMA’s enhanced enforcement powers. 

The CMA’s draft consultation guidance provides useful information on the type of practical steps expected of online review publishers, and the binding undertakings offered by Google constitute a useful ‘worked example’ of the protocols expected to be put in place by intermediaries, especially those active in the digital sector (namely search engines, online marketplaces and social media).

Online choice architecture, and fake reviews in particular, are likely to remain an area of focus for the CMA. Accordingly, businesses that publish online reviews would be well advised to review their existing consumer protection compliance policies to ensure that they are fit for purpose by the standards of the DMCC Act. Publishers, and digital platforms in particular, may therefore want to pay close attention to the contents of these undertakings and consider whether to pre-emptively replicate (at least some of) their content.