Omnibus Directive - new rules regarding reviews in e-commerce

The Directive of the European Parliament and of the Council, known as the Omnibus Directive, imposes many new obligations on entrepreneurs. Regarding consumer opinions and recommendations, the main focus is on the obligation to inform whether and how the company verifies the opinions shared on the website. In the article, together with the law firm KWKR Konieczny Wierzbicki and Partners, we provide advice on what to pay attention to in order to comply with the new regulations.

The Omnibus Directive as a response to unfair market practices

Ensuring a high level of consumer protection is one of the fundamental pillars of European Union law. Unfortunately, many entrepreneurs still engage in unfair market practices. In response, the European Union has taken further steps to harmonize regulations in member states, resulting in the Omnibus Directive.

One of the reasons for the creation of the Omnibus Directive is the need to counteract unfair market practices and eliminate the manipulation of customer opinions presented on websites. Research has repeatedly shown that the majority of consumers rely on the opinions or recommendations of other consumers when making purchasing decisions. Many dishonest entrepreneurs have exploited this fact to promote their products by creating fake reviews or displaying only positive ones on their websites.

The Omnibus Directive and customer opinions - what do the regulations cover?

The provisions of the Omnibus Directive concern the obligation to inform whether the opinions presented on the company's website come from genuine customers who have used or purchased the product.

According to Article 7(6) of Directive 2005/29, which was added by Article 3 of the Omnibus Directive, "Where a trader provides access to consumer opinions on products, information on whether and how the trader ensures that the published opinions come from consumers who have actually used or purchased the product shall be considered material." The essence of this regulation is therefore to inform consumers about two elements: 1) whether the opinions have been verified by the trader, and 2) if they have been verified, how (what actions the trader has taken in this regard). This provision imposes an information obligation on all e-commerce entrepreneurs who provide product reviews. Of course, if entrepreneurs decide not to provide reviews on their websites, this obligation will not apply to them," says Łukasz Wieczorek, partner and legal advisor at KWKR law firm.

Therefore, you do not have to verify the published opinions, but it is your obligation to inform consumers about it, for example by including a sentence like: "Opinions are not verified as to their origin from customers who have used or purchased the product." Yes, you are right, such information can effectively deter potential customers.

A much better solution is to add information that the opinions are authentic. However, remember that in this case, it is your obligation to take reasonable and proportionate steps to verify the origin of the opinions and to inform about the way they are processed.

How to collect and display opinions on a website in accordance with the Omnibus Directive?

Consumer opinions about products or companies can be collected in many ways. The most popular ones include email invitations and SMS messages sent after the delivery of an order or the completion of a service. You can also find QR codes, pop-ups, and rating forms on product pages. However, in the context of implementing new regulations, the most important thing is to choose a method that allows you to link the opinion to the consumer. The Directive does not specify a specific solution.

A good idea is to send messages containing a link that allows for leaving a review (this is also recommended by the President of the Office of Competition and Consumer Protection). You can also provide the option to add a rating only for logged-in users. Another option may be to require entering the order or reservation number when adding a review.

How to inform about the process of verifying consumer reviews?

Implementing a review verification process is not enough. By providing access to consumer opinions and communicating that the reviews are published by genuine consumers, the entrepreneur should provide information about the method of reviewing the opinions. In addition, it is necessary to indicate how the opinions are processed, for example, whether all opinions are published, both positive and negative, whether they are sponsored opinions, or whether there are contractual relationships with the entrepreneur that influence the opinions. But how to fulfill the information obligation?

According to the Directive, the information should be provided through the same interface in which they are published, including clearly defined and visible hyperlinks. There should be a message near the reviews stating that the opinions come from genuine consumers, for example: "Opinions come from customers who have used or purchased the product. Opinions are verified and published in accordance with the website's regulations." A link can be included in the sentence, for example, to the website's terms and conditions or online store, where the verification process is described. Of course, a separate subpage can be created, but a provision in the terms and conditions is sufficient.

Is this the end of fake product reviews?

One of the most effective methods of building a good company reputation is collecting reviews about products or services. Unfortunately, many entrepreneurs choose shortcuts by creating or buying fake reviews or consumer recommendations.

For this reason, the European Union considers the claim that reviews come from customers who have purchased the product, even though the company does not verify the reviews, as an unfair commercial practice. Furthermore, the EU document prohibits the creation of fake reviews and manipulation of reviews, such as deleting negative reviews.

"Entrepreneur's misleading actions regarding product reviews will be perceived as unfair market practices. This has a dual meaning in terms of sanctions that may be imposed on entrepreneurs. Firstly, the use of unfair market practices may result in individual consumers pursuing legal claims, such as claims to cease the practice, publish apologies, pay a sum for social purposes, or compensate for the damage caused. Secondly, administrative proceedings can be initiated against the entrepreneur by the President of the Office of Competition and Consumer Protection - the so-called proceedings for the violation of collective consumer interests (when the unfair practice affects a wider group of consumers). The maximum penalty that the President of the Office of Competition and Consumer Protection can impose for the violation of collective consumer interests is 10% of the entrepreneur's turnover from the previous financial year. Importantly, individual civil cases do not exclude the initiation of proceedings by the President of the Office of Competition and Consumer Protection (and vice versa)," points out Łukasz Wieczorek, attorney at law.

As can be seen from the above, fake reviews on a website can cause significant trouble. Choosing ethical methods of collecting reviews is definitely a better solution.