Netherlands: ACM Takes Action Against Fake Reviews
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Senior Associate
Netherlands
I am a senior associate in our Commercial Practice in The Hague where I work in the fields of commercial contract and privacy law. My practice has a strong focus on technology contracts and international transactions. I am also a member of our Tech & Comms Group.
Associate
Netherlands
I am an associate in Bird & Bird's dynamic IT/Commercial practice. With a background in law and technology, I provide comprehensive and practical solutions to our clients' most complex legal challenges.
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Customer reviews, particularly in an online setting, have become a key factor in consumer decision making. To new consumers, experiences shared by others can be a convincing sign of quality of a product – or a lack thereof – allowing them to take this information into account when making transactional decisions.
Since positive reviews can boost trust in a trader’s products or services, businesses may utilise reviews to increase their sales. It is, however, not always clear whether reviews are submitted by real people. Fake reviews can mislead consumers, causing them to make poor purchasing decisions based on false information. Since the entry into force of the Omnibus Directive, also known as the “Enforcement and Modernisation Directive” (Directive (EU) 2019/2161), submitting false consumer reviews or misrepresenting consumer reviews is misleading under all circumstances.
The ACM’s focus on businesses using fake reviews
Because of the importance of reviews in consumer decision making, the Netherlands Authority for Consumers & Markets (“ACM”) has frequently addressed the misleading use of online reviews. For instance, the ACM’s extensive Guidelines on the protection of the online consumer, which are regularly updated, contain a specific subchapter on online reviews. In these Guidelines, the ACM provides examples of what is and is not permitted, and sheds light on some grey-area practices.
Furthermore, over the past few years, the ACM took various enforcement measures against the use of fake reviews. For example, the ACM fined a on online store € 100,000 for using fake reviews to promote its products. Additionally, the regulator imposed an order subject to a penalty on an online store and issued warnings to several influencers, for using fake likes and followers on social media to promote their products or the businesses they were endorsing.
Perhaps most significantly, new rules on customer reviews were introduced in 2022. These were a result of the Dutch implementation of the Omnibus Directive. Through amendments to the Dutch Unfair Commercial Practices Act, a ban on the use of fake reviews was established. These measures were primarily aimed at businesses using fake reviews to promote their products and services.
From those who buy fake reviews, to those who sell them
More recently, in August 2024, the ACM published a press release in which it announced that it will now also be taking action against the sale of fake reviews. This signifies a new step in the ACM’s efforts to address artificial reviews, dealing with the misleading reviews directly at the source.
In the press release, the ACM states that it has launched investigations into market participants that sell fake reviews. Depending on the findings, the ACM may take enforcement measures against false-review sellers. In case of a violation, the ACM can impose fines of up to € 900,000. per violation. Enforcement is not limited to market participants based in the Netherlands: if the sale of fake reviews is aimed at the Netherlands, the ACM
Although the ACM has shared its intention to deal with fake reviews at the source, the press release explicitly reminds online stores that publish reviews that they themselves remain responsible for violations on their websites. Pursuant to the Unfair Commercial Practices Act, online-store owners remain responsible for ensuring that published reviews originate from consumers that have actually used or purchased the product.
When is a review ‘fake’?
A myriad of market participants offer reviews for sale online. Some describe their reviews as ‘real’ and ‘genuine’, adding that the reviews they offer are submitted by real people. In some cases, the accounts of the authors submitting the reviews even come with a mark signifying their trustworthiness on the relevant review platform. For instance, some business sell Google reviews submitted by accounts with the local guide-status. This begs the question: when does the ACM consider a review to be ‘fake’?
An ACM-spokesperson clarified to a Dutch newspaper that fake reviews are reviews which are not based on a true experience or purchase. Although some of the reviews available for sale online are submitted through accounts owned by real people, they did not experience the product or business that the review concerns. Hence, such reviews are in any case deemed fake by the ACM.
Takeaways for online businesses
For online businesses using reviews to promote their products or services, the ACM’s announcement serves as a reminder that fake reviews remain an important topic for the Dutch regulator. Further, it has become clear that the ACM applies strict criteria when assessing the authenticity of reviews.
The ACM explicitly reminds online stores that they themselves remain responsible for ensuring the authenticity of reviews on their websites. Additionally, although the investigations focus on false review-sellers, it is conceivable that the ACM’s findings may also provide insights into businesses that purchase the reviews. There is, after all, no supply without demand.
