Trustpilot was exempted for liability and had not violated the Marketing Practices Act

On 2 April 2023, a user review was published on a business' profile on Trustpilot's online platform.

The business contacted Trustpilot and requested to have the review removed. However, the business did not use the appropriate contact forms, follow Trustpilot's guidelines, or respond to Trustpilot's request for further information, including the reasons why the review violated the guidelines and the specific text the business believed was in violation.

Instead, the business commenced proceedings against Trustpilot before the Maritime and Commercial High Court late on Wednesday, 17 May 2024 (the day before a public holiday). After having reviewed the content of the writ, the review was removed by Trustpilot on Tuesday, 23 May 2023, i.e. after only two business days.

The Maritime and Commercial High Court ruled that Trustpilot was exempted from liability as a hosting provider under Section 16 of the E-Commerce Act (art. 14 of the E-commerce Directive). The court found that Trustpilot neither became aware of nor should have been aware of the review based on the notices from the business. The court also found that Trustpilot, after having obtained the necessary knowledge of the disputed review based on the content of the writ, had acted expeditiously by removing the review after only a few days.

The business appealed the judgement to the High Court, which upheld the Maritime and Commercial High Court's decision.

The High Court agreed with the findings of the Maritime and Commercial High Court.

The High Court also found that it is clear from the information on Trustpilot's website that Trustpilot does not guarantee that all reviews published on its platform originate from consumers who have used, purchased a product from, or been in contact with the business being reviewed, as alleged by the business. Trustpilot set out clear and precise guidelines on how to flag (report) any reviews which violate its Guidelines.  

Furthermore, the High Court found that there was no evidence to suggest that Trustpilot's activities or procedures violated the provisions in the Marketing Practices Act relied upon by the business.

The business argued in particular that Trustpilot had violated Section 6b and Annex 1, item 23b, of the Marketing Practices Act (implementing art. 7(6) in the Directive concerning unfair commercial practices (2005/29/EC), which concerns the obligation to provide information about reviews (see also here). The High Court noted that Section 6b concerns the relationship between businesses and consumers and merely imposes a duty to disclose whether and, if so, how the business ensures that published reviews originate from consumers who have used or purchased the products. The provision does not impose any requirements regarding the content of such information.

The judgments confirm the importance of providing hosting providers such as review platforms with all the necessary information to enable the platforms to assess the reported content.

Plesner represented Trustpilot in both the Maritime and Commercial High Court and the High Court.

The High Court's press release can be found here (in Danish) with a link to the two judgements.