Trolls beware: ACCC crackdown on misleading online reviews

The Australian Competition and Consumer Commission (ACCC) recently released guidance on managing online reviews.

Businesses face the risk of prosecution by the ACCC if they cause or permit false or misleading online reviews to be published. Adopting social media policies along with competition compliance programs will help avert the risk of a business being prosecuted.

Back in the good old days, trolls used to hide under bridges and attack goats. Now, they hide behind pseudonyms and ambush unsuspecting consumers who are casually wandering the internet.

There are increasing reports that trolls are now being paid to post reviews that suit the ends of their master. This practice – called “astroturfing” – is clearly misleading and substantially detracts from the usefulness of online reviews.

According to the ACCC, up to one in five reviews might not be a true representation of the consumer’s views.

If you remember the story of the three billy goats, it isn’t until the third billy goat crosses the bridge that the troll learns its lesson. It would seem that the ACCC has stepped up to play the role of that third goat, the big bad buck, who throws the troll back into the stream beneath the bridge.

By releasing its first guidance note for online reviews, the ACCC has fired a warning shot to businesses, review platforms and trolls. The rules for business haven’t changed − the rules are just being applied to the ever-evolving online environment.

The message for business, including employees, is that there is a need to be transparent and accountable in online dealings. Businesses must not (and must not encourage others to) engage in online conduct that is misleading or deceptive.

Some simple rules to follow are:

1. Do not post fake reviews.

2. Do not encourage others to post fake or inflated reviews.

3. If you, your colleagues, associates, friends or family post reviews of your business or your competitor’s business, the post should disclose the connection with your business.

4. Do not delete or modify unfavourable reviews. This is especially important where there is a star rating system in use.

Recently, an employee of a substantial organisation wrote glowing reviews of his employer whilst being derisive of its competitors. The employer was apparently unaware of the situation. When the ruse was uncovered, the press had a field day. Unsurprisingly, the employee was terminated. Other businesses have paid substantial fines to the ACCC when they have used fake testimonials on their company website.

All businesses should ensure that their employees are educated about their responsibilities as the agents and representatives of their employer. The collateral damage of being exposed as a troll will almost certainly outweigh any potential goodwill that is generated. Businesses should seek to adopt a policy about use of online technologies by their employees.

Even more disconcerting are the reports of companies paying for people to advocate the employer’s interests online while deliberately concealing their identity. This is clearly misleading and would expose the company to significant penalties from the ACCC.

If you think that your business is the subject of adverse troll activity then there are steps that you can take.

In certain circumstances the review platform may be required to take action. Some platforms may take action where their terms of use have been violated and businesses should make complaints in accordance with the procedures for the platform.

Otherwise, the digital fingerprint of a careless troll can sometimes be traced back to the cave where it came from. The location of the computer and the troll responsible for the offending post can be determined with expert legal and technical assistance, and a little bit of luck.

As the ACCC has noted, it can be difficult to find trolls. However, it can be done. The ramifications for the offending troll will be worse than being dunked in a chilly mountain stream.

Trent Taylor is a special counsel at law firm Holding Redlich and Ben Patrick is a senior associate at Holding Redlich.