Throughout the COVID-19 pandemic now we have seen an explosive progress of on-line purchases. On-line opinions could be useful in making a purchase order. Nevertheless (the commerce in) faux opinions (has/) have been on the rise for years and it turns into harder to distinguish between faux and real.

In November 2019 the European Parliament and the Council of the European Union adopted Directive 2019/2161 concerning the higher enforcement and modernization of Union client safety guidelines (“Directive Modernization Client Safety”).1 This directive (goals to) deliver(s) client safety (extra) in keeping with the digital age and to make sure a greater enforcement of those guidelines. The directive additionally consists of further guidelines regulating faux opinions. Regardless of the implementation deadline of 28 Might 2022, the Netherlands has been very expeditious and just lately revealed a legislative proposal implementing the Directive Modernization Client Safety (the “Dutch Proposal”). The Dutch Proposal is open for (web) session till 22 November 20202.

On this weblog we are going to set out the principles regulating faux opinions in Enterprise to Shoppers relationships below Dutch regulation and the amendments below the Dutch Proposal referring to faux opinions.

Pretend opinions: deceptive and unfair?

The Dutch Civil Code (“DCC”) at present doesn’t have a selected ban on faux opinions nor a definition thereof. Nevertheless, a industrial apply is thought to be deceptive if it gives data that’s factually incorrect or that (is more likely to) mislead(s) the typical client for instance in relation to the character, foremost traits and/or the standard of a product (article 6:193c (1) DCC).  A faux evaluate could also be stated to simply meet these standards, particularly when faux opinions are bought and revealed with out informing the general public of this, which seems to be an present apply. In such a case, the typical client has been withheld important data essential to take an knowledgeable transactional resolution, which could be certified as a so-called deceptive omission (Article 6:193d (1)(2)DCC).

Moreover, the Dutch Basis on Promoting is a self-regulatory physique of trade that has compiled a set of sensible guidelines within the Dutch Promoting Code and particular codes such because the Social Media Code & Influencer Advertising and marketing (“SMC”). The SMC accommodates a ban on manipulation of social media communications. This features a prohibition on the usage of false or non-existent identities that create faux “likes” or opinions and extends to the airing of solely optimistic opinions with out indicating – if that’s the case – that detrimental opinions have been deleted. Any pure or authorized entity can submit a grievance with the Promoting Code Authority. The draw back is that these choices should not binding, however they do get pleasure from a excessive diploma of authority and are generally complied with in apply.

The Dutch Proposal: faux opinions

The Dutch Proposal could also be thought to be a win for client safety, however would possibly deliver alongside some sensible implications for the trade.

Deceptive omission: important data

The Dutch Proposal broadens the class of deceptive omissions (Article 6:193d along with 6:193e DCC) and particularly consists of that when merchants present entry to client opinions, the buyer needs to be knowledgeable whether or not and which checks and balances are carried out so as to be sure that opinions are bona fide. Checks may embrace the technical means to confirm the reliability of the individual posting a evaluate e.g. by requesting data to confirm that the buyer has really used or bought the product. Extra data also needs to be supplied which incorporates inter alia:

  1. how opinions are being filtered (e.g., solely displaying optimistic or detrimental opinions);
  2. whether or not a evaluate is sponsored or in every other approach influenced by a contractual relationship (e.g. by influencers selling a product on their social media accounts).

This data is certified as important below the Dutch Proposal. The failure to offer such data or to offer such data in an ambiguous method and thus, influencing the buyer to make a unique transactional resolution than the buyer could have taken with the data, is deemed to be a deceptive omission which is certified as an unfair industrial apply.

Blacklist: deceptive industrial practices

The Dutch Proposal moreover extends the already present blacklist of practices which might be deemed to be deceptive below all circumstances (Article 6:193g DCC) to incorporate:

  • the dearth of implementation of checks and balances: when stating that opinions of a product are submitted by shoppers who’ve really used or bought the product, affordable and proportionate steps needs to be taken to confirm that they originate from such shoppers;
  • the submission of faux opinions: submitting or commissioning a 3rd occasion to submit faux opinions or endorsements or displaying shoppers opinions or social endorsements in a deceptive method so as to promote merchandise.

With regard to the dearth of implementation of checks and balances the Dutch legislator moreover suggests {that a}(nother) affordable and proportionate step is implementing a detection mechanism for suspicious patterns of submitting opinions (e.g. (i) when a (very) giant variety of opinions are submitted in a (very) brief time; (ii) the usage of similar texts in numerous opinions; or (iii) the systematic withdrawal of detrimental opinions). Steps to be taken to fight and get rid of such practices are inter alia the initiation of additional investigation and the removing of such opinions. As acknowledged above, there may be an obligation to tell shoppers concerning the carried out checks and such data qualifies as important data. Stating that opinions of a product are submitted by shoppers who really used or bought the product with out the aforementioned checks and balances in place subsequently qualifies as a deceptive industrial apply (see recital 47 Directive Modernization Client Safety).

With regard to the prohibition on submitting or commissioning faux opinions these embrace ‘likes’ on social media in addition to the manipulation of opinions (e.g. deleting detrimental opinions and solely displaying optimistic opinions). The extrapolation of social endorsements may additionally fall inside the ambit of this blacklisted prohibition (e.g. by linking of opinions or different interactions with the buyer with completely different albeit associated content material and creating an total optimistic client look in direction of the content material in its entirety – see recital 49 Directive Modernization Client Safety).

Enforcement

The Dutch Proposal moreover strengthens the power of the Dutch supervisory authorities to take enforcement actions in opposition to inter alia unfair industrial practices. Noteworthy is the implementation of a most tremendous within the case of coordinated actions i.e. joint enforcement actions in opposition to a dealer within the occasion of for instance a cross-border unfair industrial apply. The Dutch Proposal features a most tremendous of ten p.c of the annual turnover of a dealer within the Member State(s) involved within the case of a blacklisted deceptive apply as talked about in article 6:193g as mentioned above. Failure to adjust to the aforementioned guidelines and to implement the required checks and balances could thus result in excessive penalties being imposed.

Sensible implications and conclusion

Total, the Dutch legislator acknowledges that the Dutch Proposal will result in elevated compliance prices. Nevertheless, the draft explanatory memorandum states that the data obligations for the trade is not going to result in a considerable enterprise affect aside from adjusting the web atmosphere when use is made from ranking techniques and client opinions.

Ought to the Dutch Proposal be adopted in its present type, non-compliance may result in a considerable tremendous. It’s subsequently really useful to contemplate, the place potential and applicable, tips on how to implement the required steps so as to adjust to the data obligations which might be foreseen within the Dutch Proposal as properly well timed implement the required  checks and balances – as set out above – when utilizing a ranking and/or evaluate system. However, the Dutch Proposal is at present nonetheless in its preliminary levels and we’re wanting ahead to see how the adoption will develop within the interval to come back.


  1. This directive amends 4 completely different present directives of which we are going to give attention to (the implementation of) Directive 2005/29/EC (the “Unfair Industrial Practices Directive”) on this weblog.
  2. The web session could be discovered right here (in Dutch). The legislative proposal and the accompanying draft explanatory memorandum will also be discovered by way of aforementioned hyperlink.

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