Are fake reviews illegal in the UK
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Is it illegal to post fake online reviews
It is illegal for a business to post fake online reviews about themselves or about their competitors. Consumers who post fake online reviews about a business could be sued for defamation and for malicious falsehood by the business owners who are the subject of the fake online review.
Fake online reviews are very common. Based on data that has been released by Yelp.com and by Amazon, the rate of online fake reviews might range between 20%-40% but the actual number of fake online reviews is unknown. Writing a fake online review has never been easier. A fast growing industry of online review websites leaves very little hope to those business owners who want to play it fair. The number of fake online reviews is constantly growing.
A significant number of fake online reviews are written by business owners who often act in despair after becoming themselves victims of fake online reviews. In 2013, an investigation by The Times revealed hotel owners in the UK were paying up to £10,000 to agencies that promised to improve travel review rankings. More recently a damaging research conducted by professors at Harvard Business School, resulted in an admission by Yelp.com, one of the most popular online review websites in the USA, that nearly 20% of the reviews posted on their platform were likely to be fake.
In 2015, The Times reported that Amazon took to court more than 1000 people who were suspected of posting fake online reviews on its platform in an attempt to clean up its website and increase the credibility of its online review system. In 2020, Amazon was reported to have deleted tens of thousands of fake online reviews, which had been posted by 7 of its top reviewers. Too many businesses who hire online reputation management companies to help them repair damage caused by negative online reviews, often choose not to ask too many questions about how the miraculous improvement in their company’s online review ranking had occurred. They do however need to be aware that in the UK, writing fake online reviews (or astroturfing, as this practice is commonly referred to) is illegal.
There are two types of fake online reviews that are posted by businesses. The first type is positive fake online reviews about their own business, and the second, is a fake defamatory online review against a competitor.
Regardless of whether a business owner posts fake online reviews about their own business or against a business of a competitors, the business owner could face an investigation by National Trading Standards, which is a body operated by local authorities and has prosecution powers, or by the Competition and Mergers Authority, which is a national body responsible for preventing and reducing anti-competitive activities.
If retailers distort publishing fake online reviews they are in breach of rules contained in the Consumer Protection from Unfair Trading Regulations 2008 as well as advertising codes. The Consumer Protection from Unfair Trading Regulations 2008 prohibits unfair commercial practices. Writing fake online reviews satisfies the definition of unfair commercial practice because it contravenes good professional practice, and it is likely to distort the economic behaviour of the average consumer.
The Consumer Protection from Unfair Trading Regulations 2008 (CPUT) prohibits misleading practices by business owners. The CPUT Regulations prohibit misleading actions and misleading omissions which cause or are likely to cause the average consumer to take a different decision. Posting fake online reviews might be considered a misleading action or an omission (or both). This is because fake online reviews prevent consumers from getting from the trader the information they need to make informed decisions relating to products. Misleading actions by traders may include giving false information to customers A misleading action occurs when a practice misleads through the information it contains, or its deceptive presentation, and causes or is likely to cause the average consumer to take a different decision.
The current risk of getting caught by an enforcement authority and of being prosecuted for posting fake review is fairly low as this appears to be low in the priority list of the consumers law enforcement authorities. However, the risk of being taken to court for defamation or for malicious falsehood is real following the posting of fake reviews about a competing business.
Business owners who post, or who are responsible for posting fake online reviews against competitors, could find themselves being sued for malicious falsehood. To bring a claim for malicious falsehood against a business owner who is caught posting fake online reviews against competitors, you only need to prove on balance of probabilities that the fake online reviews had been posted by the defendant. There is no requirement to prove the identity of the defendant beyond reasonable doubt.
If you can show that it is more likely than not to be the person you suspect, this would often be enough. Because business owners who post fake online reviews against their competitors, usually hire somebody else to do this on their behalf, it is enough to demonstrate the business owner’s responsibility. This is done by presenting to the court circumstantial evidence that reveals, on balance, that it is more likely than not to be the defendant who had been responsible for posting the fake reviews.
With malicious falsehood the victim business owner is not required to prove damage to reputation nor does she need to prove damage to her own personal reputation. All that she needs to show is that the defendant, maliciously publishes a false statement which identifies the claimant, or her business and that words published had been calculated to cause the claimant financial loss or, depending on the facts of the case, have caused actual loss to the claimant.
In most cases, it is possible to obtain a disclosure order, a subpoena or a Norwich Pharmacal Order to compel website operators to provide details about any user who you suspect had posted a fake online review against your business. Depending on the country where the website operator is located, you will need to choose the best method to help you identify who wrote the fake online reviews about your business. In most cases, you can obtain a Norwich Pharmacal Order in a court in England, which will subsequently be honoured by website operators in the United States.
However, it is best to check with us first as in some cases, if you obtain a disclosure order in England against a website operator in the United States, the foreign website operator might require you to domesticate the disclosure order before they provide you with details of the identity of the individual who posted the fake reviews about your business. In this case, it might be quicker and cheaper to apply for a disclosure order in the local court to the website operator in the USA and to work together with US Internet Law Attorney to ensure that your case is dealt with adequately.
Once you have identified the poster of the fake online reviews, you will be able to decide whether to continue for an injunction application in the American court or transfer the case over to England.