Addressing Fake Online Reviews and Review Bombing: Legal Perspectives in India

Introduction

In today’s digital marketplace, online reviews wield extraordinary power, capable of making or breaking a business with just a few clicks. Yet, lurking beneath this influence is a darker side: the surge of fake reviews and orchestrated review bombing campaigns that threaten consumers and businesses. Navigating this landscape isn’t just a matter of ethics; it’s also a legal maze.

Article 19 of the Indian Constitution champions the right to free speech and expression, embracing the freedom to critique goods and services. However, this freedom isn’t without limits. Especially when reviews become defamatory, indecent, or clash with public morality. This delicate balance raises crucial questions: where do we draw the line with online reviews, and what protections exist for those trapped by malicious attacks?

The Dark Side of Online Reviews: How Review Bombing and Fake Reviews Hurt Everyone

In today’s digital age, online reviews wield significant power, influencing consumer decisions and shaping business fortunes. However, the rise of review bombing and fake reviews poses serious threats to businesses and consumers. Review bombing, a coordinated effort to flood a business with negative reviews, can severely tarnish a business’s reputation and lead to substantial revenue losses. This malicious activity is particularly troubling as recovering from it is often an arduous process, impacting sales and customer trust for extended periods.

Fake reviews exacerbate the problem by creating an environment where it’s challenging to distinguish between genuine and fraudulent feedback. This not only undermines consumer trust in the review system but also diminishes the credibility of online platforms. As a result, potential customers may become sceptical of all reviews, hindering their decision-making.

Legal and ethical challenges also arise from review bombing, questioning the responsibilities of online platforms in moderating such content. Determining whether review bombing constitutes free speech or defamation adds another layer of complexity. Furthermore, detecting and removing fake reviews is a daunting task, as they often appear authentic and are posted in large numbers.

Addressing fake online reviews and review bombing: legal perspectives in India

Indian Regulatory Framework: BIS Standards and Legislative Measures

The BIS 2022 standard represents India’s primary effort to regulate online consumer reviews. It mandates that organizations collecting and publishing reviews must establish clear terms and conditions that emphasize accuracy and fairness. Reviews must be based on personal experiences, factually accurate, and free from defamatory content. The standard also requires a robust moderation process to prevent the publication of fraudulent or misleading reviews.

In addition to the BIS standard, India’s legal framework includes the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and the E-Commerce Rules, 2020. These rules impose obligations on intermediaries, such as social media platforms and e-commerce sites, to exercise due diligence in preventing the spread of misleading information as per Rule 3. The E-Commerce Rules specifically prohibit sellers from falsely representing themselves as consumers or posting deceptive reviews about their products as per Rule 6.

Indian courts have further clarified the balance between free speech and defamation in the context of online reviews. In VP Sarathi v. S Kiruthiga, the court recognized the internet as a vital platform for expression but emphasized that it cannot be used to disseminate false or defamatory content. Similarly, in Mubeen Rauf v. Union of India & Ors, the court addressed “review bombing,” underscoring the need to distinguish between genuine criticism and malicious attempts to damage reputations. These judgments highlight the judiciary’s role in maintaining the integrity of online reviews while protecting individual rights.

Comparative Analysis: Global Approaches to Regulating Online Reviews

When comparing India’s approach to international practices, several key differences and similarities emerge, particularly regarding enforcement, detection, and penalties for fake reviews and review bombing.

In the United Kingdom, the Digital Markets, Competition and Consumers Bill explicitly prohibits submitting fake reviews and incentivizing false reviews. This stringent approach not only aligns with the BIS standard but also places a considerable burden on businesses to ensure compliance. The UK’s enforcement mechanisms are robust, focusing on preventing misleading practices before they harm consumers.

The European Union’s Directive 2019/2161 takes a slightly different approach by emphasizing transparency. It requires traders to clearly inform consumers about how reviews are collected and processed, with penalties for non-compliance. This directive is similar to India’s BIS standard in its focus on transparency but introduces additional penalties for misleading practices, adding an extra layer of deterrence. However, the enforcement of this directive across the diverse EU markets remains challenging, making consistent implementation difficult.

In Australia, the Australian Competition and Consumer Commission (ACCC) takes a proactive stance by urging platforms to actively seek out and remove fake reviews. This hands-on approach, while resource-intensive, ensures that review integrity is maintained at a high level. Australia’s focus on vigilant monitoring could serve as a model for India, where enforcement of existing standards could be further strengthened through similar proactive measures.

Canada’s approach, as outlined in the Competition Act, provides a comprehensive framework for addressing false or misleading representations and deceptive marketing practices. The Act includes both criminal and civil provisions, allowing for severe penalties against those who knowingly or recklessly engage in deceptive practices. Under the criminal regime, penalties can include fines of up to $200,000 and imprisonment for up to 14 years. The civil regime allows for significant fines—up to $10 million for corporations on a first offense—and orders for restitution to compensate affected consumers. Canada’s dual regime approach, which covers both the criminal and civil aspects of false advertising, offers a robust model for India to consider, particularly in enhancing the punitive measures associated with review manipulation.

Enforcement and Detection: Challenges and Opportunities

Enforcement of regulations concerning online reviews varies significantly across jurisdictions. In India, while the BIS standard and supporting legislation provide a strong foundation, the effectiveness of enforcement remains a concern. The complexity of monitoring vast amounts of online content, coupled with the need for more resources dedicated to enforcement, presents significant challenges.

In contrast, countries like Australia and Canada have invested in proactive detection mechanisms and stringent penalties, which have proven effective in deterring fake reviews. The ACCC’s emphasis on active monitoring and Canada’s substantial penalties for violations create a deterrent effect that India could emulate. Strengthening the enforcement mechanisms within India’s regulatory framework could involve adopting more proactive monitoring techniques and increasing the penalties for non-compliance to ensure that they serve as a real deterrent.

Strengthening India’s legal framework against fake reviews

India’s online marketplace is increasingly threatened by fake reviews, which distort consumer perception and harm market integrity. To address this issue, India could draw inspiration from Canada’s stringent legal framework, introducing stricter penalties and mandatory reporting requirements for online platforms. Proposed legal reforms might include imposing significant fines for corporations and criminal penalties and imprisonment for individuals who knowingly engage in fraudulent review practices. Additionally, regulatory bodies could mandate platforms to report instances of suspected review manipulation to authorities and maintain records of flagged reviews and subsequent actions. These measures would ensure that platforms are actively involved in combating review fraud, rather than merely hosting content.

Beyond legal penalties, enhancing technological defenses is crucial. Investing in advanced machine learning models, such as deep learning techniques and anomaly detection algorithms, can significantly improve the detection of fake reviews. These models can analyze vast datasets to identify subtle patterns indicative of fraud and flag deviations from typical user behavior, such as sudden spikes in negative reviews from new accounts. Moreover, analyzing user behavior to detect potential review manipulation—tracking the frequency and timing of reviews and correlating user activity with external events—can help platforms identify coordinated review bombing efforts.

Further, incorporating blockchain technology could enhance transparency and trust in the review process. Blockchain can be used to implement smart contracts for automating the verification of reviews and decentralized identity verification systems to ensure only legitimate users can submit feedback. Additionally, platforms could require users to upload images or videos as proof of their experiences, utilizing AI to verify the authenticity of uploaded content and encouraging video reviews, which are harder to falsify.

Consumer education campaigns and clear guidelines on acceptable review practices can complement these technological and legal measures. These guidelines should prohibit incentivizing reviews without disclosure, define fake reviews and review bombing, and require platforms to provide mechanisms for reporting suspicious reviews.

By adopting a comprehensive approach that integrates stricter legal frameworks, advanced technological solutions, and robust consumer education, India can effectively combat fake reviews and maintain the integrity of its digital marketplace.

Balancing Free Speech and Regulation

Balancing freedom of speech with legal and technological responses to combat review bombing and fake reviews is a complex endeavor. A well-defined legal framework is crucial, clearly outlining the boundaries between legitimate criticism and defamatory or malicious reviews, as illustrated in VP Sarathi v. S Kiruthiga and Mubeen Rauf v. Union of India. Such a framework should also include appeal mechanisms, like independent review boards, to ensure fairness and transparency in content moderation. Technologically, combining AI with human oversight can enhance the detection of fraudulent reviews while safeguarding genuine expressions. User empowerment tools, such as rating systems and community moderation, further support a balanced approach, fostering trust without stifling free speech.

Conclusion

The battle against fake online reviews and review bombing is a complex but critical endeavor for maintaining trust in India’s digital marketplace. By drawing from international best practices and strengthening existing legal frameworks, India can enhance its regulatory landscape to better address these challenges.

Stricter penalties, mandatory reporting requirements, and robust enforcement mechanisms are essential to deter fraudulent activities. Additionally, integrating advanced technologies such as machine learning and blockchain can provide powerful tools for detecting and preventing fake reviews. Coupled with consumer education and clear guidelines for acceptable review practices, these measures will help safeguard consumers and businesses alike, ensuring a more transparent and trustworthy online environment.

By taking a comprehensive approach, India can protect its digital economy from the detrimental effects of fake reviews and review bombing.

(This post has been authored by Aryan Dash and Debasish Halder, students at National Law University, Odisha)

CITE AS: Aryan Dash and Debasish Halder, ‘Addressing Fake Online Reviews and Review Bombing: Legal Perspectives in India’ (The Contemporary Law Forum, 27 September 2024) <https://tclf.in/2024/09/27/addressing-fake-online-reviews-and-review-bombing-legal-perspectives-in-india/>date of access.