Most of the changes to consumer law brought in by the Digital Markets, Competition and Consumers Act 2024 (DMCC Act) are due to be implemented in April 2025.  These changes include a new banned practice relating to consumer reviews. 

The Competition and Markets Authority (CMA) has recently issued draft guidance on these changes. Here we delve into the guidance about the consumer reviews provisions. 

What are the new requirements around consumer reviews?

The new provisions relating to consumer reviews are included in the "blacklist" in Schedule 20 of the DMCC Act.  This means the CMA does not have to show that the practice has affected the transactional decision-making of the average consumer when bringing enforcement action.  This makes the new provisions an attractive enforcement option for cases under the new Act.

The scope of the new provisions is broad. They cover reviews of products, services and digital content and are wide enough to cover delivery or after-sales care.  Reviews can take various forms including text, speech and graphic representations (e.g. a star rating appearing next to a product listed in a search result).

It isn't just reviews that are covered by the new provisions, but also information that is derived from or is influenced by them ("consumer review information").  In practice, this means information such as aggregated information in the form of overall ratings, review counts and rankings are in scope too.

The new provisions cover submitting or commissioning a person to write a fake review or concealing that the review has been incentivised and publishing consumer reviews in a misleading way. However, in this article, we focus on the guidance on the new obligation to take reasonable and proportionate steps to prevent the publication of fake reviews or reviews that fail to disclose they are incentivised. 

Taking reasonable and proportionate steps to prevent banned reviews

This places a positive obligation on a publisher to take reasonable and proportionate steps as are necessary to prevent and remove banned reviews and false and misleading consumer review information.

Publishers include traders who display or make available consumer reviews or consumer review information and various intermediaries who display or make available reviews of other traders or their products. This will include specialist review sites, online marketplaces and search services.

The requirements of this obligation will vary by business, according to factors set out in the guidance.  These include having regard to the relevant business model and the potential impact of the trader's activity.  Those which have higher risk practices will have to implement more extensive measures. The draft guidance sets out a non-exhaustive list of example measures. These include:

1. Prevention and removal policy

This should be made readily available to users and should clearly prohibit fake reviews and confirm the publisher's position as regards incentivised reviews. It should be clear to consumers how they can submit their reviews and the difference between leaving a review and a complaint should be explained.

2. Risk assessments

Businesses should conduct regular and comprehensive assessments to evaluate the risk of consumers encountering banned review material on their websites, or other media, and to identify appropriate measures to address this.  The guidance makes clear the assessment is not a one-off exercise and should be regularly updated.

The assessments should take account of internal and external sources of information, including using technology designed to identify banned reviews, third party reports and the findings of any investigations. 

Where there is a risk of banned reviews or consumer review information appearing, as a minimum the business should develop systems relating to the detection of the banned information, its investigation and sanction actions, where appropriate.

3. Detection methods

There are various methods of detection that a business may adopt. What is reasonable and proportionate will vary case by case. The draft guidance sets out a non-exhaustive list of detection measures which range from having clear rules about who can submit a review to carrying out regular checks for banned or misleading information.  Also included is having a third-party notification system which enables third parties to report suspicious review activity.  

4. Investigation procedures

Businesses must have a process for conducting investigations into suspicious reviews or consumer review information.  In many cases, it may be possible to determine automatically that the identified content is unlawful so that it can be removed without further investigation.  In other cases, further investigation may be necessary. In these circumstances, further investigations should be timely so as not to prejudice the publication of any genuine reviews but also so that correction or removal of unlawful material happens without delay.  Where a review is suspicious, it should not contribute to consumer review information until it has been verified.

5. Sanctions

Where the business determines that there are banned reviews or false or misleading consumer review information, it must take steps to prevent the consumer being misled by them.  The guidance envisages the business taking a combination of measures including removing the offending material, correcting any relevant consumer review information, banning user accounts and clearly alerting consumers that banned reviews have been identified in relation to a particular trader.

So, what do YOU need to do?

Given the hefty fining powers the CMA is receiving in the spring, businesses involved in writing, procuring or publishing consumer reviews might want to take heed of the draft guidance now, before it is finalised next year.

This will involve ensuring a relevant business has published a fake reviews prevention and removal policy and carries out a risk assessment.  If it identifies the risk of banned reviews, then the business will have to develop and implement adequate detection, investigation and sanction policies and procedures, if not already in existence.

Records should be kept of relevant complaints, investigations, actions and sanctions and all processes should be regularly evaluated and improved, as necessary. Relevant staff should be trained on the new law and the relevant policies so that they understand what they are expected to do to ensure compliance.

Those businesses that use third parties to authenticate reviews should note that such an arrangement will not absolve you of responsibility under the new provisions.  This means that you will need to ensure that the third party has adequate systems, processes and policies in place to comply with the new provisions.

Leave a review of the CMA's draft guidance!

The CMA is currently consulting on its draft guidance and the consultation ends on 22 January 2025.