In a short time, networking sites have become one of the main channels for companies’ communication. eBay, Tripadvisors, Amazon or even the more conventional social networks such as Facebook or Twitter have, in fact, become preferential showcases for advertising. They do undoubtedly represent an opportunity for making a company visible, but they nonetheless pose a real threat to reputation. Companies are now faced with a new, major challenge in terms of unfair competition, that is to say “fake customer reviews”, that, although false, have a great influence on the consumption of the products and services they target.
The French Directorate-general for competition, consumer affairs and prevention of fraud (DGCCRF) revealed that 74% of surfers have already changed their minds about buying a product because of negative comments or reviews.
Faced with this hefty problem, companies endow themselves with legal instruments with the intention of stamping out such practices.
Disparagement and deceptive marketing practices
The case law has already determined in the past, that defamation cannot be a valid foundation for “judgements, even excessive, concerning the products or services of an industrial or commercial undertaking”.
Concerning unfavourable reviews regarding a commercial activity, undertakings must base their case in the domain of unfair competition, particularly by referring to an act of disparagement. This practice consists in a person or an undertaking discrediting the goods or services of an undertaking with the intent to harm reputation. Like any act of unfair competition, the author of disparagement can be held liable on the basis of article 1140 of the Civil Code.
For instance, on this basis, the Court of Appeal of Paris ruled against a company selling food supplements which had strongly criticised the products of their rival on their site in the “product reviews” section, describing them as “crap” among other things.
The Court had, in the case in point, also based its decision on article 121-1 of the Code of Consumption which sanctions deceitful marketing practices to the extent that such comments corrupt the natural behaviour of the consumers.
Similarly, sanctions had been pronounced concerning negative opinions of a restaurant which had not yet even opened when they were posted.
New sanctions for false online reviews
Although disparagement and deceitful practices had been the traditional foundations concerning these exaggeratedly negative remarks, the legislator specifically intended to control and thereby punish these fake reviews.
In the light of this, three implementing decrees of the law for a Digital Republic entered into force on 1st January 2018. Introducing the new article L111-7-II of the Code of Consumption, they oblige undertakings and individuals whose activity consists in collecting, moderating or disseminating online reviews from customers, to provide fair, clear and transparent information on their processing and publication. This must be presented alongside said reviews, their date of publication as well as that of the consumer experience concerned and whether or not they underwent a control procedure. These decrees replace individual platforms’ voluntary compliance with the Afnor standard, which is supposed to ensure the fairness of the comments. It remains to be seen how the platforms will comply with such requirements.
This new obligation which imposes increased monitoring of such reviews on undertakings, shows that, although unfair competition was a convenient tool, case law has shown that these extensive large scale practices represented a real challenge for companies and should be framed by specific texts.
The firm Dreyfus & associés specialises in the field of intellectual property. Their team is up to date on the new developments in European legislation. They will be able to provide you with all the help and guidance you require concerning your intellectual property rights in Europe.