Thursday 13 April 2017

Reviews and the law - detailed analysis of the CMA's letter to businesses

Here we take Jon Riley, the CMA (Competition and Markets Authority) Project Director's open letter to businesses inviting customer reviews, to their websites or to anywhere else, be that Google or one of the many independent reviews sites, and expand on it - point-by-point.

We are doing this now - nearly nine months after the letter was published and in addition to our December article on the same subject, because we continue to see solutions adopted by businesses that are - wittingly or unwittingly - flouting both the word and the spirit of these legally enforceable regulations.

Links: use of online reviews and endorsements and concluded an investigation

Note: When the CMA use the term 'retailer' they mean any business selling products or services to members of the public or other businesses.

The important phrases in this section are 'content....accurately reflect reviewers' feedback on their experiences, hotly followed by 'Fair-playing'. The litmus test of any reviews system is really very simple: does it allow a dissatisfied customer to voice their opinion in exactly the same way as a satisfied customer? If your business can answer 'yes' to that simple question it is likely to be compliant with CMA regulations.

Do not think that the CMA will hesitate to take action. They have the full weight of consumer protection law behind them and there is ample recent evidence that they are prepared to use it. In 2015 three estate agents were fined a total of £375,000 for breaching CMA rules.

Compliance with these three points is crucial. The CMA has legal powers to demand evidence of compliance. Every customer of every HelpHound client is able to write a review whenever they choose, they just need to visit the business's website. HelpHound moderators are trained to monitor communications between our clients and their reviewers to ensure compliance.

Our Resolution™ moderation system is designed to ensure compliance with both these points. Many reviews sites currently have procedures in place which favour the business. Examples of these include 'invitation only' systems where the review site only invites reviews from nominated email addresses and or only allows reviews to be written at point-of-purchase. The CMA would doubtless argue that the purchaser of, say, a pair of shoes or a dishwasher, or the tenant in the case of an estate agent, might be in a a better position to review the quality of the product (in the first two examples) or service (in the latter) months or even years post-purchase. At HelpHound we would agree.

It is made clear on our modules that all genuine reviews are published:

All our clients' reviews are displayed chronologically by default, with the reader being given the following options:

All legitimate, genuine, relevant and lawful reviews are published, positive or negative. The extent of the delay in publication of the review remains in the hands of the reviewer at all times. We advise all our clients against displaying testimonials as they have lost power in the eyes of the overwhelming majority of consumers when compared with independently verified reviews.

Resolution is designed to efficiently facilitate both these points. Some systems incorporate appeals procedures that - perhaps inadvertently - favour the business. One such allows the business to 'appeal' any review, at which point the review site will suspend the review from publication and revert to the reviewer and ask them to substantiate whatever comments the business finds contentious. On the face of it this looks fair, but in reality it allows the less scrupulous business to appeal all and any negative reviews in the near-certain knowledge that few reviewers will persist. With our system the reviewer always retains the right to have their review published - at whatever stage in the process they may find themselves. Furthermore, all reviewers are invited to publish a review at the completion of the Resolution process.

Our T&Cs do not allow threatening or abusive language, but that does not necessarily invalidate the review: we will refer back to the reviewer and ask them to rewrite their review using more temperate language.

There is an interesting reversal of this - we have seen communications from one review site to a business declining to enter into discussion about a negative review of the business and inferring that this might happen if the business in question were a paying member.

In summary

To take the well worn 'duck test' (if it look like, quacks almost certainly is). If, as a business, you are offered a reviews solution that 'favours your business' it is almost certainly non compliant. And this is not confined to external review sites - we have in the last month  encountered a large national business with over two hundred branches that is selectively displaying Google reviews on each branch's web page.

Here is a link to the 60-second summary from the CMA:

As ever, if you are a HelpHound client this article is for information only. If you are not yet a client and you would like us to comment on your current procedure, just contact us.

Important update May 2020: The CMA launches an investigation

22 May 2020: The Competition and Markets Authority (CMA) has opened an investigation into several major websites that display online reviews.

The CMA will investigate whether these websites are taking sufficient measures to protect consumers from fake and misleading reviews. In particular, it will examine how the websites currently detect, investigate and respond to fake and misleading reviews. It will look into issues such as:

  • suspicious reviews – where, for example, a single user has reviewed an unlikely range of products or services;

  • whether businesses are manipulating the presentation of reviews about their products and services by, for example, combining positive reviews for one product with the reviews for another; and

  • how these websites handle reviews about products or services that the reviewer has received a payment or other incentive to review.

See the full text and the CMA's press briefing here.

And finally...

It is illegal to chop and change review solutions as and when one shows the business in a better light than another. This is especially the case when a business uses a widget to feed its Google reviews to its own website until it receives a damaging one-star review there, when the feed is dropped until sufficient 5* reviews are gained to 'bury' the damaging review. 

In short, any strategy that the CMA sees as benefitting the business to the detriment of the consumer will be deemed illegal - even if it is not specifically mentioned in the CMA regulations.

Further reading...

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