Among other things, the Digital Markets, Competition and Consumer Act 2024 (DMCC Act) requires publishers of consumer reviews to take "reasonable and proportionate steps" to prevent the publication of fake or misleading consumer reviews. But what does "reasonable and proportionate" mean in practice?
1 What does the DMCC Act say about consumer reviews?
The DMCC Act lists 32 "banned practices" – that is, practices that are banned in all circumstances (regardless of the effect on consumers) because they are seen as being inherently unfair. One of these banned practices relates to fake consumer reviews. The key definitions are as follows:
Key definitions
- A consumer review is any review of a product, a trader or a matter relevant to a transactional decision. This is a broad definition covering, for example, text, videos and star ratings.
- A fake consumer review is a consumer review that purports to be, but is not, based on a person's genuine experience. Keep in mind that this applies to both positive and negative reviews – so it could apply to a fake negative review designed to undermine a competitor.
- A concealed incentivised review is a review that conceals the fact that it has been incentivised. Incentivisation could be cash, discounts, freebies, invites to events or the reviewer having a financial interest in the trader or product.
- Consumer review information is information derived from or influenced by consumer reviews, such as aggregated star ratings for a product.
The DMCC Act prohibits certain behaviours in relation to fake reviews, including the submission or commissioning of fake consumer reviews or concealed incentivised reviews, and the publishing of consumer reviews or consumer review information in a misleading way. This briefing focusses on the last aspect, namely the obligation on publishers of consumer reviews.
Who is a "publisher" and what are they obliged to do?
Publishers are traders who display or make available reviews on their own websites or other media, and intermediaries who display or make available reviews of other traders or their products (e.g. specialist review sites, online marketplaces, search services and social media).
They are obliged to take "such reasonable and proportionate steps as are necessary to prevent the publication of fake reviews, concealed incentivised reviews and fake or misleading consumer review information."
This obligation is necessarily fact dependent. However, this leaves publishers of consumer reviews in a tricky spot: what steps will be considered reasonable and proportionate in their circumstances?
2 What do publishers of reviews need to do?
The Competition and Markets Authority (CMA) has published guidance on the fake consumer review provisions of the DMCC Act (see here). The key compliance measures that it recommends are as follows:
A published policy on reviews
All publishers should have a published policy which (among other things) clearly prohibits fake reviews and confirms the publisher's approach to incentivised reviews and consumer review information (e.g. stating that incentivised reviews are not allowed, or otherwise stating that where incentivised reviews are allowed, the incentives must be apparent through the contents of the review or otherwise). The policy needs to be readily available and easily accessible.
Regular risk assessments
Publishers should conduct reasonable and proportionate risk assessments to assess the risks that consumers may encounter banned reviews on the publisher's media and identify appropriate measures to address those risks. The assessments should take into account information that is reasonably available to the publisher, including the findings of internal investigations, third party reports, and the results of technology designed to identify banned reviews. The "appropriate measures" that are identified as part of this process should cover processes, policies and systems for detecting, investigating and taking action in response to banned reviews.
Proactive steps to identify fake reviews
Publishers need to take proactive, reasonable and proportionate steps to identify banned reviews. The CMA gives examples of different detection measures that might be appropriate in different circumstances, including:
- Controls over review sources – such as having clear rules, applied consistently, for who can submit a review. For example, it may be feasible for some publishers to only allow an individual to submit a review for a product if the publisher has verified that the individual purchased or used the product in question. However, publishers should not prevent a user from leaving a review merely because they have not bought the relevant product themselves (for example, where it is received as a gift).
- Checks by the publisher – these could be manual (e.g. by regularly analysing a sample of reviews and looking for suspicious content) or performed using software designed to identify banned reviews and spot anomalies and other patterns in the text of the reviews themselves. AI solutions are likely to be useful here.
- Third party notification systems – such as providing consumers, traders and other third parties the ability to report suspected banned reviews, or letting users see a reviewer's public review history.
Investigation and corrective action
Publishers also need to have a process for conducting proportionate and reasonably timely investigations of suspicious reviews. Where the investigation concludes that content constitutes a banned review, the publisher must take steps to prevent consumers from being misled. This is likely to include removing the banned review, but other steps might also be necessary. In particular, publishers may need to adjust any aggregated data to reflect the removal of the fake reviews, and take appropriate steps against the entity that submitted the false review, such as preventing them from submitting more reviews (or suspending their ability to do so).
Regular reviews
Finally, publishers should conduct regular assessments of their processes around banned reviews and take steps to address any inadequacies. We would also recommend starting your compliance process with a look at how you currently present reviews, as the CMA's guidance contains an entire section setting out ways in which presentation may be misleading, even if the review itself is genuine. For example, it warns against suppressing negative reviews (e.g. by displaying more positive ones first) and "cherry-picking" (e.g. giving undue prominence to a highly favourable review which is not really representative of the bulk of reviews for that product). It also emphasises the need to consider whether some reviews may become outdated (e.g. because the product has changed) and warns against "review merging" (e.g. combining the reviews of two similar but different products in order to boost the lower performing product's ratings and review count).
3 What is reasonable and proportionate?
The key question for publishers is how much resource they are expected to dedicate to the prevention of fake reviews. The CMA makes the point that publishers cannot justify inaction based on a lack of resources – so even a small trader publishing the reviews of their own customers is likely to be required to take at least some steps to prevent banned reviews.
Factors to take into account
However, there must be at least some limits to how far publishers are required to go. Some additional considerations that were flagged by the CMA to help determine what is reasonable and proportionate include:
- The publisher's business model – for example, the steps required of a trader operating a search platform that publishes user reviews about third-party products might need to take more steps than a website which publishes reviews of its own customers where there's likely to be direct proof of purchase.
- The source of the review – in practice, the steps required of a first-party publisher (e.g. a review website) may differ from, and be more significant than, those required of a second-party publisher (e.g. a trader displaying website ratings given on a first-party publisher's website). Nevertheless, each publisher should take a risk-based approach to the steps they take to comply with their duties. For example, a second-party publisher should take steps to evaluate the first-party publisher's policies and arrangements for dealing with fake reviews before displaying reviews from the first-party publisher's website.
- The type of content shown to consumers – for example, a publisher will be expected to take more significant steps where they used consumer reviews to create aggregated rankings or scores for traders or products.
- The potential impact of a trader's activity – for example, if a publisher operates a site that lets many users generate and read reviews, there's a higher incentive for third-party traders to procure banned reviews for that site, and therefore a higher risk which is likely to require more steps.
Whilst the undertaking given by Google to the CMA earlier this year in relation to fake reviews provides some helpful guidance, it does not indicate how much resource Google is planning to devote to this issue (see the CMA press release here). As noted above, software is likely to be an important part of the solution for many publishers, but staff will still need to be allocated to make decisions on how to respond to the reports generated by the software. Publishers should also consider manual checks of samples of reviews to indicate whether the software is effective.
4 Additional guidance for trader recommendation platforms
In November 2024, the CMA separately issued compliance principles for trader recommendation platforms (TRPs) in relation to their consumer-facing services, marketing and website content (see here). TRPs are a particular subset of publishers, being entities that operate a website or app that recommends traders, or that consumers may use to find a trader.
One of the compliance principles is that, if a TRP displays reviews on its platform, it should adopt effective, transparent and impartial practices for the collection, moderation and publication of those reviews. The CMA has made it clear that the DMCC Act coming into force should not significantly impact the substance of this advice. Unsurprisingly, there is significant cross-over with the draft guidance issued by the CMA under the DMCC Act. One of the key points is that TRPs are expected to impose sanctions on any business which either:
- dissuades consumers from posting negative reviews or otherwise tries to prevent such reviews from being posted; or
- is itself implicated in the posting of fake reviews on the TRP's platform.
5 What's next?
Preventing fake reviews is an area of focus for the CMA. Every publisher of reviews will be expected to take some steps to prevent the dissemination of fake reviews; however, the steps that are reasonable and proportionate will vary depending on the circumstances.
The clock is ticking...
The CMA has indicated that after July 2025, it will expect publishers to have taken steps to comply with the provisions of the DMCC Act relating to fake reviews and will consider enforcement actions against businesses which have failed to do this. It's worth bearing in mind that, as of 6 April 2025, the CMA can impose fines of up to 10% of turnover.
How can we help?
Deciding what is "reasonable and proportionate" is never straightforward. We can help you achieve compliance with the legislation in a way that is pragmatic and cost-effective, whilst protecting your business from the significant fines and other penalties available to the CMA as of 6 April 2025 (see this briefing). We can also assist with the drafting of fake review policies and the provision of practical guidance for staff on how to respond to evidence of fake reviews.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
