In 2013, the ACCC released guidelines for online testimonial and review sites, providing information for businesses on complying with existing consumer laws when publishing online reviews or testimonials.  An illustrative example of a business that fell foul of these guidelines can be seen here.

Last month, the international consumer protection body the International Consumer Protection and Enforcement Network (ICPEN) released guidelines on online reviews and endorsements. ICPEN is an international body made up of consumer protection authorities such as the ACCC. The guidelines are in three volumes for Review Administrators (sites such as Trip Advisor for example), Traders and Marketing Professionals, and Digital Influencers such as bloggers, tweeters and instragramers.  The recommendations for each are as follows.

ICPEN Guidance for Platform Administrators of Review Sites

  • Publish easily accessible and transparent terms and conditions according to which the reviews will be collected, moderated and published.
  • Whilst reviewers may wish to be anonymous to the public, the site should collect contact information from authors in order to ensure the authenticity of reviews.  (We note that in this case there would be a need to obtain privacy consents from individuals and to only collect the information for the disclosed purposes.)
  • Treat all potential reviewers equally – regardless of whether they are likely to give a positive or negative review.
  • Disclose where review administrators or businesses have been offered incentives (and do not limit incentives to favourable reviews).
  • Develop and maintain procedures to identify and remove fake reviews, act on complaints, prevent businesses from creating new profiles simply to avoid genuinely negative reviews.
  • Develop and maintain procedures to ensure reviews are published in an objective and neutral manner.  For example, the site should not prevent or delay negative reviews due to commercial relationships, selectively edit, place, reject or delete reviews to influence ratings or the impression of importance, create any confusion between commercial or sponsored content and genuine reviews.

ICPEN Guidance for Traders and Marketing Professionals

  • In dealings with reviewers, businesses should not offer inducements or rewards in return for positive reviews.  In the context of many of these sites this would be misleading, as the reviews are presented as impartial.
  • Never write fake reviews about your own business or your competitors or instruct someone else to do so. See related article here.
  • Request that the platform clearly identifies the businesses advertising and other marketing content or commercial relationships.
  • Play fair when challenging reviews. Businesses should not object simply because they do not like the reviewer’s opinion.
  • In dealing with bloggers, tweets or other online influencers, ensure paid content is labelled properly and prominently and do not deal with non-compliant businesses/ online influencers.
  • Disclose commercial relationships and do not ask digital influencers to hide this information.  The guidance provides the example of a business who engages a celebrity to promote their brand, but may not have provided the content or particular guidance regarding the endorsement.  In this situation, it may well still be required to disclose the commercial relationship.

ICPEN Guidelines for Digital Influencers

  • Disclose all paid-for content clearly and prominently to your audience. Interestingly, the guidelines restate that ‘paid-for’ is not limited to financial payment – it can also include free product or tickets to events. Influencers should tell their audience about any incentive that may have influenced or led them to post particular content.
  • Disclose any commercial relationships – for example if they are paid (or otherwise obliged) to act as a business’ brand ambassador.
  • When presenting or expressing an opinion as its own, or otherwise conveying that impression, the influencer should give a genuine account of their views.
  • If it is not the influencer’s own opinion they should be clear on whose opinion or experience is being stated.
  • Never pretend to be an expert or authority on a subject (the guidelines give the example of health products).  If the influencer is an expert they should explain the basis of their expertise (such as a relevant educational qualification).
  • Again, say no to non-compliant businesses that ask for paid content without proper disclosure.

It is important to note that the guidelines are not prescriptive as to how disclosures are made, and these can be made in the context of the publication, without need for legally worded disclaimers. In paid Instagram or Facebook posts, for example, the disclosure may be as simple as using the hashtag #ad or #spon or just incorporating the context into the content itself.

Finally, the ICPEN guidelines are not a substitute for compliance with any applicable local laws which in Australia may include compliance with the Australian Consumer Law, advertising standards, privacy, defamation, copyright and trade mark law.  Hopefully, though, the guidelines will lead to a more standardized approach for material that exists in an online and borderless space and will reward the transparent and #real operators. 

Authors: Dan Pearce and Emily Booth

Contacts:

Melbourne Dan Pearce, Partner 
T: +61 3 9321 9840
E: dan.pearce@holdingredlich.com

Sydney
Lyn Nicholson, General Counsel
T: +61 2 8083 0463
E: lyn.nicholson@holdingredlich.com

Brisbane Trent Taylor, Partner
T: +61 7 3135 0668
E: trent.taylor@holdingredlich.com

Disclaimer The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future. 

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