CMA clarifies expectations on consumer reviews, but uncertainties remain

Since the key consumer protection aspects of the Digital Markets, Competition and Consumers Act 2024 (DMCC Act) came into force in April, there has been a lot of focus on the new prohibitions relating to fake consumer reviews. With a recent report indicating that customer reviews influence 9 in 10 of us when making purchasing decisions and Trustpilot alone having removed 4.5 million fake reviews in 2024, it’s easy to see why the government has brought in legislative measures to try and tackle this. 

The Competition and Markets Authority (CMA) is also treating it as a priority. Indeed, a couple of weeks ago, the CMA confirmed in a self-hosted webinar that fake and misleading reviews continue to be a key area of enforcement focus for it, noting that “In the future we’re committed to carrying out further work on online reviews – looking across the sector to determine how we might have greatest impact”.

That webinar came on the back of the fake reviews guidance published by the CMA last April and the subsequent ‘web sweep’ announced by the CMA in July which identified 54 (unnamed) companies that the CMA considered may not be complying with the guidance. 

Key themes from the webinar

While much of the webinar revisited the April guidance, several key themes emerged during the webinar that signal how the CMA may enforce the new rules going forward. Notably, businesses must:

• Avoid suppressing genuine reviews, including limiting invitations to review a product/service in order to avoid negative reviews, making resolving an issue contingent on a positive review or redirecting negative reviews into a company’s complaints-handling processes.
• Avoid cherry-picking reviews (or testimonials where a business does not publish reviews), including presenting only favourable reviews or selecting only favourable reviews to be highlighted that misrepresent the overall customer experience.
• Ensure accuracy in published review information (i.e. information derived from reviews such as aggregated star ratings and review counts), even when removing banned reviews.
• Implement procedures to detect, investigate, and respond to fake reviews, including through controls over who can submit reviews and systems to identify suspicious patterns or unlawful content.
• Publish an accessible, plain-English policy that prohibits fake reviews and explains their approach to incentivised reviews and consumer review information. Where applicable, businesses must satisfy themselves that third-party review hosts have compliant policies and link those policies, and clearly explain their use of such third-party hosts. 
• Be transparent about incentivised reviews and testimonials, ensuring - where published - that any incentives are disclosed and clearly labelled. The CMA extends this principle to any paid endorsements, with specific guidance for content creators, brands, and social media platforms.

The CMA emphasised that businesses must adopt an outcomes-based approach to compliance - tailored on a case-by-case basis – by taking ‘reasonable and proportionate’ steps to ensure effective prevention and removal of problematic content. When assessing what might constitute ‘reasonable and proportionate’ steps, the CMA suggested that businesses should consider: (1) their business model (e.g. publishing user reviews about third-party products or only from their own customers); (2) the source of reviews and review information; and (3) the actual content published and its potential impact on consumers’ behaviour.

Unanswered questions

Despite the guidance, there remain a lot of unanswered questions over the practical effect of this new legislation in specific circumstances. For example, the position remains unclear as to:

• whether it is permissible for a company only to ask repeat customers to submit (genuine) reviews;
• whether reviews for different pack sizes of a product (e.g. a set of 12 or 24 colouring pencils) can be aggregated; and
• whether incentivised reviews can be included as part of aggregated review information.

This uncertainty was underscored by the fact that, following an explanation of the guidance, roughly a quarter of respondents answered a webinar practice question incorrectly - highlighting that it is still not clear where the lines are drawn, and that general understanding is currently not where it needs to be.

Despite these uncertainties, however, with the potential for high fines for breach (up to 10% of global turnover – see our previous briefing) and the CMA’s current focus on fake and misleading reviews, now is the time for businesses to review their current practices and ensure they have appropriate policies and procedures in place.  

Our consumer law team has assisted a number of companies with their compliance in relation to fake reviews and other aspects of the new enforcement landscape.  Please get in touch with one of the authors of this post if you would like to discuss this topic in more detail.