Our previous articles provide an overview of the DMCC and discuss the changes to the UK competition regime. This alert focuses on Pillar 1 of the DMCC, consumer protection, in particular the prohibition on fake consumer reviews.

Under the DMCC, the following are automatically unfair commercial practices:

• Submitting or commissioning fake consumer reviews, or consumer reviews that conceal the fact they have been incentivised.
• Publishing consumer reviews, or consumer review information, in a misleading way.
• Offering services to traders for the doing or facilitation of any of the above.

Businesses are also under a positive obligation to take reasonable and proportionate steps to ensure that consumer reviews, or consumer review information, that they publish are genuine, not misleading and do not conceal incentivisation.

In December 2024, the CMA released draft guidance on this topic (the Draft Guidance).

A further update in our series on the DMCC will be published shortly, focusing on digital markets (Pillar 3).

Key terms

• Consumer review - a 'review of a product, a trader or any other matter relevant to a transactional decision'. This is a broad concept which can take different forms (for example, written blogs, star ratings etc.) and is not limited to online reviews.
• Consumer review information - 'information that is derived from, or is influenced by, consumer reviews'. This typically indicates, or purports to indicate, the quality, value, performance or reputation of products or traders, and can enable consumers to quickly compare the options available (for example, aggregated information in the form of ratings and rankings).
• Fake reviews - consumer reviews that 'purport to be, but are not, based on a person's genuine experience'. These can be positive or negative. A review is not fake merely because the business who it is about does not like or agree with it, as long as it reflects the reviewer's genuine experience.

Fake reviews

The DMCC covers both:

• Submitting a fake review or concealed incentivised review (together Banned Reviews), i.e. supplying it with a view to publication, and.
• Commissioning a Banned Review, i.e. appointing another person to submit or write it (or create it by any other means), which includes incentivisation.

The Draft Guidance sets out individuals and businesses who may be subject to this prohibition, namely: professional reviewers, journalists, content creators, marketing companies and individuals acting on behalf of businesses.

Misleading reviews

This prohibition covers practices that mislead consumers through the information they are presented with or through information being withheld or obscured.

Consumer reviews may be misleading where, for example, a business:

• Presents reviews of a different product as relating to the product a consumer is considering.
• Suppresses negative reviews and / or cherry picks positive reviews.
• Highlights certain reviews over others because they are particularly positive.
• Does not clearly disclose the fact that reviews have been incentivised (for example, through money, discounts, commercial links with the business being reviewed etc).

Consumer review information may be misleading where, for example, a business:

• Fails to promptly update a product's star rating and / or review count where reviews have been identified and removed as fake.
• Ranks traders in a way that gives comparable weight to incentivised reviews as to non-incentivised reviews.
• Allows consumer review information to be determined or influenced by accepting commissions from the trader who is being reviewed in return for greater prominence in rankings.

Offering services to traders

It is prohibited to offer to do or facilitate any of the above prohibited practices. For instance, a business offering services that increase the chance of a fake review being successfully posted on a website by virtue of the business's expertise in bypassing the website's fake review detection measures would be prohibited.

Reasonable and proportionate steps

Alongside the prohibited practices, the DMCC imposes a positive obligation on businesses to take reasonable and proportionate steps to ensure consumer reviews, or consumer review information, that they publish are genuine, not misleading and do not conceal incentivisation.

This is a potentially cumbersome obligation for businesses, however the Draft Guidance sets out useful clarification on what 'reasonable and proportionate steps' covers:

• Businesses should have policies on fake and incentivised reviews and consumer review information. This should be readily available to third-party traders and consumers, and set out how consumers can submit reviews (avoiding dissuading them from writing negative reviews).
• Businesses should conduct regular and comprehensive risk assessments to determine whether Banned Reviews are present and whether remediation is required. This should not be a one-off exercise.
• Although rigorous measures to prevent non-compliance should be developed, businesses should be wary not to prevent genuine, lawful and relevant reviews from being displayed.

The Draft Guidance also discusses how what is reasonable and proportionate depends on the context. The following factors may be considered:

• The review publisher's business model (i.e. a business operating a search platform which publishes user reviews of third-parties versus a business publishing reviews about its own product).
• The publication medium's functionality (i.e. whether website users have a degree of control over a website's functionality).
• The type of content shown to consumers.
• The potential impact of the business's activity.
• Any additional risk stemming from the impact or potential impact of Banned Reviews on aggregated consumer review information.

Although the Draft Guidance is a useful starting point for businesses, it should not be viewed as a 'one size fits all' or 'tick box' approach.

Impact of non-compliance

Under the DMCC the CMA has the new power to directly enforce certain provisions, including those relating to fake consumer reviews. Businesses who breach the prohibitions previously discussed could face civil fines of up to £300,000 or up to 10% of global annual turnover, whichever is higher. The likes of the FCA can also apply to court to issue fines for lack of compliance.

What should businesses do now?

The UK Government has stated that it expects the consumer protection regime to commence in April 2025. The prohibition on publishing consumer reviews and consumer review information in a misleading way and the obligation to take reasonable and proportionate steps are likely to be the most relevant provisions to clients, as many businesses have 'this is what our customers say about us' pages on their websites.

If you are publishing consumer reviews you should ensure you have adequate processes for the collection and moderation of these. This includes having appropriate contractual terms in place with any third party review platforms relied upon, such as Trustpilot. Businesses who do not currently have frameworks in place will need to draft and implement the relevant policies, procedures and risk assessments.

When it comes to taking reasonable and proportionate steps a three stage approach should be considered:

• Detection – businesses should carry out, for example, controls over review sources, manual and automated monitoring, and record keeping.
• Investigation – this should be timely and thorough. Businesses should consider whether to apply temporary measures (for example, marking reviews as pending / suspicious).
• Response – businesses should remove the unlawful activity and correct any published review counts, overall ratings / ranking and any AI-generated summaries etc. The source of the unlawful activity should be addressed (for instance, by suspending or revoking the reviewer's privileges).

Ultimately, where a business cannot put in place effective measures that are reasonable and proportionate to their circumstances to address the need to prevent and remove Banned Reviews and false or misleading consumer review information, they should not publish consumer reviews or consumer review information.