New rules for consumer reviews
On 28 May 2022 new rules for consumer reviews will come into force. It will entail higher demands for transparency when traders use consumer reviews for marketing purposes.
The current rulesToday, consumer reviews are subject to the general prohibition against misleading marketing, including the prohibition against covert advertising, as the Danish Marketing Practices Act does not include separate rules for consumer reviews. In addition, consumer reviews are subject to the Danish Consumer Ombudsman's guidelines on publication of consumer reviews from 2016 Forbrugerombudsmandens retningslinjer om offentliggørelse af brugeranmeldelser fra 2016 (in Danish). However, the guidelines only apply to consumer reviews on proper review platforms such as Trustpilot etc, and not to publication of consumer reviews on traders' own websites.
The new rules from 28 May 2022
Section 6b of the Danish Marketing Practices Act comes into force on 28 May 2022. The text of the provision, which is based on Article 7(6) in the Directive concerning unfair commercial practices (2005/29/EC), is the following:
"A trader providing access to consumer reviews of products, must inform consumers in a clear and comprehensible manner whether and, if so, how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product."
This obligation applies both to traders who have consumer review functionalities on their websites and to traders who provide access to consumer reviews published by a third party, for example Trustpilot.
The new provision in section 6b of the Danish Marketing Practices Act does not include an obligation to ensure that published reviews really originate from consumers. On the other hand, if traders publish consumer reviews on their websites or for other marketing purposes, the new rule implies that traders are obliged to advise whether it has been ensured that consumer reviews originate from consumers who have purchased or used the products reviewed.
If processes or procedures have been introduced to ensure the genuineness of the consumer reviews published, the consumers should also be informed in a clear and comprehensive manner how the consumer reviews are processed and checked, including whether all reviews, positive as well as negative, are published.
The black list
In addition to section 6b of the Danish Marketing Practices Act, the so-called black list in the annex to the Act will also be extended by two new provisions in nos 23b and 23c, which also concern consumer reviews. The black list includes various types of trading practices which should ways be considered to be misleading or aggressive.
The provision in no 23b implies that if it is stated that a consumer review originates from a consumer who has used or purchased the product, it will always be considered to be misleading if no reasonable and proportionate steps have been taken to ensure that this is actually the case.
The provision in no 23c includes a prohibition against misleading representation of consumer reviews or social endorsements for the purpose of promoting products. This implies, for example, that it will not be possible to include positive consumer reviews in a flow at the side of the website without advising at the same time that only the positive reviews have been selected. The provision does not imply that it is an absolute requirement that both positive and negative reviews must be published, but it must be advised if only the selected, positive consumer reviews are being shown.
Sanctions for breach of the new rules on consumer reviews will be imposed according to the new fine model in the Danish Marketing Practices Act which is expected to imply significantly higher fines than previously for breaching the Act.