Can I write anything I want in a review, irrespective of commercial relationships?

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The short answer to this question may well be “no” following recent case law and examination by the Australia Competition and Consumer Commission (ACCC) in respect of consumer reviews.

Recently, the ACCC has recognised the fact that online consumer reviews are relied upon more and more by consumers as a means of making more informed purchasing decisions. As such, the ACCC has taken an interest in protecting the integrity of such reviews, to ensure businesses are not using this method of advertisement to conduct in a misleading or anti-competitive way.

The ACCC has published a supplier guide called “What you need to know about: Online reviews – a guide for business and review platforms” (the guide) which can be found here.

This guide includes a set of principles that are aimed are preventing the occurrence of misleading reviews online. These principles refer to information contained on ‘review platforms’ which can include blogs, business websites and social media.

The three principles discussed in this guide are:

1.       Be transparent about commercial relationships

Commercial relationships between review platforms, reviewed businesses and/or reviewers could lead to unfair advantages between competing reviewed businesses, according to the ACCC.   Consumers usually expect that reviews on independent review platforms such as Yelp, Google Reviews or OpenTable are not affected by commercial relationships. A business for example, can pay for advertising on a platform’s website or even pay commission payments to the review platforms for purchases made from the platform. The guide and the ACCC is concerned that these commercial relationships may result in reviews with higher ratings, possibly through the removal/non-placement of negative reviews, than would occur if there were no commercial relationship.

It is integral that these types of relationships do not create an unfair advantage and mislead consumers. Disclosure of such commercial relationships to consumers is one way of ensuring you are not breaching the Competition and Consumer Act.

 

2.       Do not post or publish misleading reviews

Reviews that are presented by a business as impartial, but were actually written by the reviewed business, a business competing with the reviewed business, third persons paid to write a review when they have not used the product or service or someone who has used the product or service but who writes an inflated review because they have been provided with a financial (or any other) benefit, may mislead customers and therefore lead to a breach of Australian Consumer Law.

In the guide, the ACCC recommends removing any reviews which are known to be fake, biased or misleading.  From a practical perspective, we understand that removal of an existing review can be challenging and as such it is important to ensure that the way you and your business make reviews, elicit reviews or deal with reviews complies with the Australian Consumer Law and not in any way misleading or problematic.

 

3.       The omission or editing of reviews may be misleading

Although the ACCC recommends the removal of reviews that are fake or biased, the guide also indicates that the removal or editing of reviews, especially when this has an effect on the overall rating given by a review platform, may also lead to misleading conduct.

The ACCC has previously taken action against companies for posting fake or misleading customer reviews and testimonials, or even preventing customers from making reviews. For example, in the relatively recent decision of the Federal Court in the case ACCC v Meriton Apartments Pty Ltd [2017] FCA 1305, Meriton Apartments was found to have contravened the Australian Consumer Law.

In that case, Meriton had a relationship with TripAdvisor which involved sending the emails of their guests to TripAdvisor, which would then be used by TripAdvisor to send an email invitation to the guest to write a review about their stay. It was found that Meriton was inserting the letters “MSA” into the email addresses of guests who had made complaints about their stay, meaning they would never receive the email invitation from TripAdvisor. Not only were the wrong email addresses being “used”, Meriton withheld a number of emails during periods where there had been a major fault within the hotel, such as a hot water failure.

Meriton’s breach does not necessarily fall within the principles discussed in the guide, proving further how broad the Australian Consumer Law is.  The case is also illustrative that it is imperative that businesses are proactive in ensuring any reviews or testimonies published and relied on by consumers are not misleading or deceptive.

It is integral that as a business owner, you are aware of your obligations under Australian Consumer Law in relation to reviews by customers and particularly reviews that you request or that you yourself provide.

 

Coutts can assist your business and provide advice as to risks in reviews and your conduct under this body of legislation to ensure you have peace of mind that your business activities around reviews do not breach the requirements of consumer law.

For further information about reviews about your business or the Australian Consumer Law, please don’t hesitate to contact:

Keely Irving
Lawyer
keely@couttslegal.com.au
02 4607 2124