There has been a lot of publicity in recent weeks surrounding those that are involved in the selling on of ‘fake reviews’ including the owner of an Italian promotions company being convicted and imprisoned for selling fake reviews to hundreds of hospitality businesses across Italy in order to raise their profile on TripAdvisor.
Consumer rights in the United Kingdom are protected by various statutory bodies such as the Police, Trading Standards and the Consumer & Markets Authority who use various statutory and common law protection afforded by the law (in both civil and criminal jurisdictions) to protect individuals from those who seek to mislead others by fake online reviews. These bodies could also be joined (in England & Wales) by private companies seeking to protect their reputation and/or the interests of their members by bringing civil actions and also by employing their own private criminal prosecutions.
The Consumer Protection from Unfair Trading Regulations 2008 (CPUTs) contains a specific prohibition on businesses falsely representing themselves as consumers. The CPUTs are enforceable through both the civil and criminal courts and can lead to a fine for a company or a prison sentence for its directors. The offences detailed under the CPUTs are also known as ‘lifestyle offences’ – that is where the courts will review every aspect of a convicted individual’s lifestyle and that of their family and confiscate that which the individual cannot legitimately account for. Therefore, post-conviction for any relevant offence, the authorities can look to see what economic gain has been made from the illegal activity and to commence proceedings to claw back any financial gains via the Proceeds of Crime Act 2002 or other compensatory rules through the civil courts.
Although any action that falls to be prosecuted under criminal law will, of course, be dependent upon the facts surrounding the online review and it should be remembered there are also other areas of statute that could be employed on any factual matrix.
The Fraud Act 2006 (section 2) states that a person can be guilty of fraud by false representation if they:
(a) Dishonestly make a false representation, and
(b) Intend, by making representation, to make a gain for themselves or another, to cause loss to another, or to expose another to a risk of loss.
A representation is defined as being false if it is untrue or misleading, and the person making it knows that it is, or might be, untrue or misleading.
The maximum penalty is 12 months imprisonment and/or a fine for summary only offences and on indictment 10 years imprisonment with unlimited fines. Such offences would be looked at by prosecutors to see if they can bring in both the company/individual writing the reviews for payment and also the individual/company making payment for reviews that they know to be fraudulent.
The law is still developing in this area with various organisations involved in consumer protection demanding stronger regulation of online reviews alongside a program of effective legislative and regulatory procedures being put in place for the detecting of and the removing from websites by online review companies, ISPs and search engines of fake or inaccurate reviews to formalise some form of dispute resolution procedure thereafter.
These are interesting times for companies such as TripAdvisor. It goes without saying that if they lose the faith of those who are carrying out, and those relying on, the reviews they themselves become obsolete and will wither in the court of public opinion.
It is in everyone’s interest to ensure that online reviews-whilst often subjective in nature-are not fraudulent at their inception.
Matt Bosworth is a partner and the head of the regulation and sports law team at Russell-Cooke.