Once upon a time they were simply called word of mouth. If you had to go to another city for business or pleasure, you could just phone your local friend and ask for advice on where to stay or eat; if you needed to change your stereo system, you’d ask your musician friend for advice. It was called word of mouth. Those who worked well were rewarded by their customers who told their friends about it.
That’s more or less how it worked in our profession as lawyers. It goes without saying that “in our time it was better…”. The digital revolution (unfortunately, in this case, reinforced by Covid) has led to an increase in all portals offering online delivery services. Be they goods (such as Amazon) or services (such as Tripadvisor).
So how has our old word of mouth transformed? Simple: in the reviews that other users make of a product or a place. Of course, if you trusted your friend and his word of mouth almost blindly (the counterbalance was simply the complaints if you didn’t get along well), it is not the same for reviews.
This phenomenon is certainly not new if we think that already in 2014 the Antitrust Authority had sanctioned Tripadvisor with a fine of 500,000 Euros on the following grounds: “it emphasises the authentic and genuine character of the reviews, thus leading consumers to believe that the information is always reliable, the expression of real tourist experiences“.
The phenomenon of fake reviews is now so important that a definition has been found to qualify the phenomenon, which is now included in the broader concept of astroturfing (1).
When we talk about fake reviews, we should not think that they are only negative ones. In fact, even positive reviews can bring an unjustified advantage to a company.
Be careful! In Italy, the right to criticism is in force, so there is no ban or limit on comments, reviews or judgments given in good faith on the basis of one’s own subjective taste.
What is prohibited and sanctioned are fake reviews.
When we talk about fake reviews, there is a distinction to be made about the dynamics that companies can adopt: on the one hand, there are the so-called incentivised reviews and, on the other, reviews that are created ad hoc using fake accounts.
The most important marketplace site, Amazon, has banned so-called incentivised reviews since 2016. In the rules governing the ‘Product Review Policy’ (2), a seller is prohibited from placing a request for a review or an incentive to provide a positive review on the product packaging or on the packaging of a sold product.
In the last few days, Amazon, after months of investigation, has suspended 600 brands (a total of about 3,000 different accounts) that were in breach of the rules on fake reviews (3).
These brands were implementing both policies of fake listings, i.e. if on the one hand they continued to perpetuate the policy of incentivised reviews by providing their buyers with discounts or vouchers in exchange for 5-star reviews, on the other hand they were illegally purchasing review packages provided by various sites.
On what legal basis could Amazon proceed with the suspension?
First of all, on the basis of the Community Guidelines that are present in the various national sites of the Seattle giant. In fact, the Italian site states that ‘The integrity of the Community is very important to us. Any attempt to manipulate the Community or alter its operation, for example by contributing false, misleading or inauthentic content, is strictly prohibited. If you violate our Guidelines, we may deny you access to Community features, remove content you have posted, remove related products from sale, or suspend or terminate your account. If we determine that an Amazon account has been used to conduct activities in violation of the Guidelines, orders and transactions may be suspended. Engaging in unlawful activities may also violate applicable laws, and may result in legal action and civil and criminal penalties” (4).
As far as Italian law is concerned, the rules that apply can be found in both the civil and criminal codes.
With regard to criminal law, it is clear that a false review can be attributed to the offence of defamation (5), since the prerequisites for such an offence are:
(a) The inability of the offended party to defend his position since he cannot directly perceive the defamatory offence;
(b) that there is an injury to a person’s reputation;
(c) that the defamation is communicated to more than two persons.
All these elements are present in the hypothesis of a fake review.
As far as the field of civil law is concerned, it cannot escape even those who are unfamiliar with the subject that a false review may qualify as unfair competition (6).
In fact, among the code’s provisions we read that is considered as unfair competition the behaviour of a person who: “disseminates news and comments on the products and activities of a competitor, likely to bring them into disrepute, or appropriates the merits of a competitor’s products or business“. Also in this case, there is no doubt that the rule finds direct application in cases of false reviews.
In light of the above, which represents the purely theoretical problem, we must always highlight how in the digital market practice and concrete remedies always involve further and different issues than in the “real” world.
We have already dealt with the responsibilities of providers under the Decree 70/2003 (7), which provides that Internet Service Providers are not bound to a general obligation to monitor the information and activities they convey, nor do they have an obligation to search for potentially unlawful activities, which makes it very difficult to remove unlawful content (in this case, fake reviews), since a decision by the Judicial Authority is necessary.
And also to reach a decision of the Judicial Authority the process is not easy because, following a formal and detailed complaint, the Judicial Police provides to investigate who is potentially the author of the false review by requesting from the Provider the communication of the data of registrants and access data of the authors (IP addresses used). Unfortunately, as a result of this communication, it is more often discovered that they belong to non-existent or untraceable users (just think how easy it is to open an account with false personal details and use it from an Internet point, or how easy it is today to use a proxy or a VPN, even from abroad, to remain anonymous).
Ultimately, therefore, it must be emphasised how difficult it really is for the managers of portals/marketplace sites to be able to carry out timely checks on violations and damage caused by fake reviews. Certainly, despite the various attempts of manufacturers to circumvent the regulations on this issue, the dissuasive function carried out by blocking the sale of falsely reviewed products is very important. This is because, since the purpose of these reviews is to obtain commercial advantages when selling, it is clear that cutting off the source of these revenues is a powerful weapon. Where the law fails, money arrives…
To close with something more concrete, we list some Italian case law on the point:
a) Tripadvisor and the Antitrust Authority
In 2014 the Antitrust Authority, had ruled that Tripadvisor spread misleading information because the site highlighted that the reviews were “true and authentic”, causing confusion among consumers. This was due to the fact that the site was not able to check all the reviews received and therefore guarantee their truthfulness. A fine of €500,000 was also imposed because “In the context of the offer of an online comparison service, the assertiveness of the professional’s commercial communications about the reliability of the reviews published constitutes an unfair commercial practice in breach of Articles 20, 21 and 22 of the Consumer Code if it takes place in the presence of misleading information on the sources of the reviews published, related to the unsuitability of the tools and procedures adopted by the professional to counter the existence of false reviews [Garante per la concorrenza, 22.12.2014].
In 2015, the Regional Administrative Court, after Tripadvisor had appealed the decision, ruled instead that Tripadvisor had never guaranteed the truthfulness of the reviews on its website, overturning the decision of the Antitrust Authority, also underline that Tripadvisor pointed out to all users that it was impossible to check the reviews.
Finally, in 2019, the Council of State (Cons. Stato Sez. VI, 15/07/2019, no. 4976, Autorità garante della concorrenza e del mercato v. TripAdvisor LLC and others) expressly decided that the untruthfulness of the so-called claims is capable of constituting a misleading commercial practice in violation of the duty, placed on the commercial operator, to act with completeness and clarity in its business communication (in the case in question, it was considered that the claims used by the Tripadvisor platform, read as a whole, were such as to give an average Internet user a false belief in the reliability and authenticity of the reviews published therein). Convicting Tripadvisor to pay a fine (reduced in comparison with the first degree) of 100,000 Euros.
b) Court of Venice – the case of Ristorante Do Forni
This is the first ruling of an Italian Court concerning fake reviews (Court of Venice, III sez., Order of 18 March 2015) which provides for the obligation to remove them from a website.
The case: a well-known Venetian restaurant (Do Forni) had requested Tripadvisor, through its lawyers, to remove a particularly negative review as it was highly damaging to its reputation and defamatory. In the review, in fact, the user denounced that the restaurant was dirty and expensive and also that he had found a cockroach on his plate.
Tripadvisor immediately removed the review from its website, but it reappeared identical only a few days later.
At this point, the restaurant was forced to appeal to the Court of Venice (which has jurisdiction, despite the fact that the user was writing from an American account and the Tripadvisor site is based in the United States, because the damage caused to the restaurant was occurring in Italy), in order to force the site to remove the review.
The grounds on which Do Forni’s appeal was based (he has never contested the right to criticism and has numerous negative comments on his Tripadvisor profile) were not only based on the defamation contained in the review, which represented a personal attack, but also on the fact that the review should not be considered truthful for three different reasons: 1. the user is anonymous, 2. there is a typing error present in both the first and second versions, which suggests that it was not written on the website, but in a stored file and 3. the user first makes it clear that he had only been to the restaurant once, but then, talking about tipping the waiters, it seems that he knew the restaurant inside out (“Only if the waiters know you and know that they will receive a good tip then they will avoid leaving your dishes to get cold on the kitchen shelf and making you wait hours to eat“) (8).
The judge, accepting the appeal in its entirety, ordered the immediate removal of the post with an order (which the restaurant has notified to Tripadvisor not having been able to notify it to the user as anonymous and unknown) reserving the right to quantify the damage to the image with ordinary proceedings. Tripadvisor proceeded to remove the review and signed a confidential agreement with the restaurant for the compensation of damages, leaving us with the curiosity of the economic criteria for the evaluation of damages of this type.
c) Pub Mulligans
Finally, a Covid-related case of this period.
A pub in Camerano (AN) found itself targeted by false reviews on Tripadvisor. Reason? Because it had dared to ask its customers to show the Green Pass in order to eat inside the pub.
It is interesting to understand how these reviews came about: messages had appeared on the Telegram site (in various No Vax chats) telling all members of the community to “boycott with negative reviews” the restaurant because they “ask for the green pass”.
Following this message, numerous fake reviews appeared on the pub’s Tripadvisor profile.
The demonstration of the falsity of the reviews and therefore the reason for the request to Tripavisor to remove the various comments was quite simple since they all mentioned the lunch eaten in the pub. But the restaurant had been closed for lunch for over 10 years….
In the end it is useless to complain but perhaps just realise that the Net is not worth the word of mouth of friends when we have to choose a product or a place.
(1) “Astroturfing is the attempt to create the impression of broad popular support for a policy, individual or product, when such support is low. Multiple online identities and fake pressure groups are used to trick the public into believing that the astroturfer’s position is the common opinion” from https://www.theguardian.com/commentisfree/2012/feb/08/what-is-astroturfing