Lawyer specializing in competition law in Paris: negative opinion

Update of June 1, 2023: Judgment of May 25, 2023 Paris Commercial Court – Click here

Update of June 6, 2023: polygraph decree facilitating the investigation of false opinions – Click here

consumer opinion a communication challenge for companies

A competitor pretends to be a customer and posts a negative review? Be accompanied by a lawyer specializing in competition law in Paris.

It is now customary to be able to publish online reviews of a store, an online business or a service provider. But also on a brand or on a restaurant. Online reviews are useful for consumers, however they can sometimes be misleading and abusive. The lawyer specializing in communication law accompanies you on these themes of negative opinions online.

Despite the fact that everyone has the right to freedom of expression and therefore to freely express their thoughts and opinions, opinions published on the Internet may constitute defamatory remarks if they are abusive. The legislation also recalls the limits not to be reached for consumers who wish to give their online reviews.

From now on, in one click it is possible to publish a online reviews. On the other hand, the deletion of a review negative turns out to be more complex. Every business leader today fears being confronted with this problem. The reasons can be different: defamation, poor performance, personal revenge Or intent to harm.

Then, a company's reputation and business can be threatened by a negative opinion on the Web. It can sometimes be a unfair practice of a competitor. This is to denigrate your business and negatively influence the opinion of your customers. The qualification of defamation can also be accepted. It calls on the specific rules of press and communication law.

How to react in this case? What are your remedies? Stone of Roquefeuil, lawyer specializing in communication law, at Paris, accompanies you to defend your interests and those of your company.

See as well :

Lifting anonymity on the internet: current difficulties

Negative opinion published, impact on your communication and role of the lawyer specialized in commercial communication law

Some professionals do not hesitate to try to discredit a company competitor with the aim of harming it. There are various practices used to distort free competition. In particular that of write fake reviews pretending to be a consumer. The e-reputation has an important place in our society today.

Thus, more and more consumers rely on opinions posted on the Internet before making a purchase or seeking the services of a professional. According to a study by the French Institute of Public Opinion (IFOP), 88% of consumers consult reviews published on the internet before making a purchase. Finally, 96% would give up a purchase on seeing negative reviews. Opinions published on the Internet can therefore be harmful to your reputation and tarnish the image of your company. As a result, you may experience a loss of customers. You may also see a drop in your turnover, a loss of credibility, etc.

Professionals in the restaurant and hotel sector are more confronted with this problem. All this especially since the creation of an application allowing consumers, whoever they are, to easily publish opinions on an establishment.

Nevertheless, all sectors of activity can be affected, so it is advisable to be attentive.

What is an unfair practice?

To this end, the Directorate General for Competition, Consumption and the Repression of Fraud (DGCCRF) ensures the fairness of commercial relations between companies. It therefore sanctions the unfair business practices.

A commercial practice is unfair when it is contrary to due diligence requirements professional. But also when it substantially alters your economic behavior with regard to a good or service. The commercial practice considered unfair is therefore prohibited and penalized by article L. 121-1 of the consumer code.

At a time when digital is taking an increasingly important place in our society, it is now essential for every professional to know how to react. A lawyer specializing in communication law can provide you with all the essential advice on this subject.

How to react in this case? How do I remove a negative review?

First, you can reply to the negative review, even if there is no comment. This will allow Internet users who consult this notice to also be able to read your response elements. Care should therefore be taken to remain professional, courteous, without aggressiveness. If, for example, the author of the review has never visited your establishment, it would be wise to specify this in the response in order to demonstrate your good faith and discredit the negative opinion. Secondly, it may be useful to report this review to the platform responsible for it, specifying that the review would be associated with conflicts of interest.

Article 6-II of the law for confidence in the digital economy provides that the platform hosting the reviews must keep data such as to allow the identification of any person who has contributed to the creation of content of which they are service providers. .

Have you received a negative review that discredits your business? You fear that this opinion is harmful to your business ? There are appeal for facts of unfair competition and of denigration.

If you believe you are a victim of this practice, quickly take the ties of a lawyer specialized in competition law, in Paris (national competence).

Unfair practice, in action or in defense, assert your rights with the lawyer in communication and competition law

The obligation to inform consumers, a weapon against negative opinions

Since 1^er January 2018, information obligations for consumers entered into force. Article L. 111-7-2 of the Consumer Code provides for information obligations for online review managers. As such, consumers must be informed, in particular, of the existence of a opinion control procedure and its main characteristics. They must also be informed of the date of publication of the notice and of the consumer experience. The classification criteria for reviews must be indicated as well as the reasons justifying the refusal to publish a review.

Nevertheless, it is very difficult for a consumer to refer a fake review published on the internet. It can sometimes be misleading business practices. The DGCCRF has also reminded consumers not to rely on a single opinion published on the internet. She advises consider multiple opinions in order to make his own observation.

Misleading commercial practices, an offense that punishes negative reviews.

Deceptive marketing practices harm consumers for whom the opinion is distorted. They also harm the professionals who are victims of them.

AFNOR, the French standardization body, created the NF Service avis client certification in 2013 to fight against false opinions. This certification allows sincere companies to demonstrate that their review collection tool is completely authentic and reliable. AFNOR's NF certification is strictly governed by the French consumer code. Thus, any company that does not meet these criteria may be penalized by the French courts.

Article L. 121-4 of the Consumer Code provides that "are deemed to be misleading within the meaning of Articles L. 121-2 and L. 121-3, commercial practices which have as their object: (…) 21° Of falsely affirm or give the impression that the professional is not acting for purposes which fall within the scope of his commercial, industrial, craft, liberal or agricultural activity or to present himself falsely as a consumer”.

Call on a lawyer specializing in communication and competition law

Assuming that you do not know the identity of the author of the notice, you can go to the nearest police station or gendarmerie to file a handrail there.

In the event that you already know the identity of the author of the opinion on the Internet and that you have evidence without the court being forced to carry out a preliminary investigation, you can proceed to a direct quote. The comments in question and the offense noted must be mentioned with precision and clarity so as not to see the facts reclassified by the court. It is therefore imperative to hire a lawyer who specializes in communication law.

In this case, therefore, it is necessary to prove willful malicious act committed by the person who published the fake review. However, the faulty nature of a comment can be complicated to assess and prove. A lawyer specializing in communication law will accompany you in the procedure. Also, he will defend your interests with the competent court, most often in Paris (national jurisdiction).

What are the penalties incurred in the event of a misleading negative opinion from the pseudo consumer?

Any breach of the information obligations mentioned in Article L. 111-7-2 is liable to an administrative fine, the amount of which may not exceed 75,000 euros for a natural person and 375,000 euros for a legal person (Article L. 131-4 of the Consumer Code).

The misleading business practices can be penalized with two years imprisonment and one fine of 300,000 euros (article L. 132-2 of the Consumer Code).

To this end, the DGCCRF carried out checks and drew up reports for misleading commercial practices. Thus, some companies have been sanctioned by the French courts. The courts have also condemned the internet users having published notices when they had not benefited from the services mentioned in the notices. For having written a false negative opinion, an Internet user was, for example, sentenced to 2,500 euros in damages and interests. He was also sentenced and fined 5,000 euros in court costs. He had in fact filed negative reviews towards a restaurant which had not yet opened its establishment. The DGCCRF has also established that 35% of the companies controlled by its services resort to the use of false notices.

Are you a professional and have you noticed the publication of a negative opinion concerning you on the internet? Do you want this to be removed so that it does not harm your company's image? Stone of Roquefeuil, lawyer specializing in communication law, at Paris accompanies you. This in the context of respecting your interests and in order to protect your reputation on the Internet.

And even :

Ord. no. 2021-1734, 22 Dec. 2021, transposing Directive 2019/2161 of the European Parliament and of the Council of 27 November 2019 and relating to better application and modernization of EU rules on consumer protection: OJ 23 Dec. 2021, text n° 21 (entry into force May 28, 2022).

This directive complements Directive 2005/29 on unfair commercial practices.

Misleading commercial practices are specified in Article L. 121-3 of the Consumer Code, in particular the fact that the merchant does not indicate "the elements making it possible to establish whether and how the professional guarantees that the opinions published come from consumers who have actually used or purchased the product when a trader provides access to consumer reviews of products. This is, however, “material information” the omission of which reveals a misleading commercial practice.

This is a revolution in the world of negative reviews.

The merchant or review platform must:

take the necessary measures to ensure that the consumers submitting the reviews have indeed used the products concerned;
inform visitors about how the site editor ensures that consumers submitting reviews have used the products concerned;

We bet that this method will be singled out by anyone who assumes that the reviews in question are fake reviews.

The conviction in first instance of signal-arnaques.com, subject to appeal

According to article D111-17 of the consumer code:

Any person carrying out the activity mentioned in Article L. 111-7-2 clearly and visibly indicates:

1° Near notices:

a) The existence or not of a review control procedure;

b) The date of publication of each review, as well as that of the consumer experience concerned by the review;

c) The criteria for classifying notices, including the chronological classification.

2° In a specific, easily accessible section:

a) The existence or not of consideration provided in exchange for the filing of notice;

b) The maximum period of publication and retention of a notice.

Article L111-7-2

Without prejudice to the information obligations provided for in Article 19 of Law No. 2004-575 of 21 June 2004 on confidence in the digital economy and Articles L. 111-7 and L. 111-7-1 of this code, any natural or legal person whose activity consists, principally or incidentally, in collecting, moderating or disseminating online opinions from consumers is required to provide users with fair, clear and transparent information on the procedures for publishing and processing reviews posted online.

It specifies whether or not these opinions are subject to control and, if so, it indicates the main characteristics of the control implemented.

It displays the date of the notice and any updates.

It informs consumers whose online review has not been published of the reasons justifying its rejection.

It sets up a free feature that allows managers of products or services that are the subject of an online review to report a doubt about the authenticity of this review, provided that this report is justified.

A decree, issued on the advice of the National Commission for Computing and Liberties, sets the terms and content of this information.

Online review platforms are therefore required to indicate near the reviews the date of consumption experience, in an easily accessible section, the retention period for the reviews.

On the signal-arnaques.com site, the dates of consumption experience were not mentioned near the notices published on the reporting pages.

Conviction to removal of non-compliant report pages

By order dated December 22, 2021, the presiding judge

de commerce de Paris found that the publisher did not respect these obligations, by not mentioning the date of consumption experience next to the negative opinions.

The company victim of the negative opinions was therefore not able to verify the reality of consumer experiences and therefore could not justify itself, thus suffering a manifestly illicit disorder.

The judge ordered the deletion of the reporting pages concerned under a penalty of €1,000 per day of delay.

Another memorable decision, which we welcome, also subject to appeal, sanctions the famous Google My business listings, scoring a point against wild directories and anonymous negative opinions:

Judicial Court of Chambery, ch. civil, judgment of September 15, 2022, n° 19/01427

Google My business files file professionals without their consent and collect anonymous opinions without any verification, in the name of freedom of expression and even though Google's goal is mercantile: to attract clicks on its engine, to encourage professionals to use its advertising services.

These wild directories are highly reprehensible, like most operators of online reviews, which do not operate any verification of reviews, leaving the door open to all abuses, cf.THE NEW ARGUMENT OF THE WILD DIRECTORIES AGAINST THE GDPR: FREEDOM OF EXPRESSION.

In this decision, the court recognizes that

Google is prospecting professionals,
Google does not demonstrate a legitimate interest justifying the processing of the personal data of the professional without his consent; the "right to public information" (the famous "freedom of expression") invoked by Google, weighed against the protection of personal data and privacy, does not make it possible to identify such a legitimate interest, and while Google produces its listings and collects opinions in order to strongly encourage (if not oblige: if only to allow professionals to respond to negative opinions) the people on file to use its services; in addition, the public's right to information is already satisfied by the dissemination of information on the professional via other media; moreover, the right to reliable information is not satisfied by Google, which collects unverifiable opinions from anonymous people – and whereas today the lifting of anonymity is no longer possible in the context of civil actions and that Google refuses to remove reviews under its privacy obligations – there is a “Obvious imbalance between the professional and the user and the impact for the professional concerned can be significant”.

The legitimate interest of the data controller must be clearly and precisely determined.

The duty to inform must be properly fulfilled. The professional does not have to suffer reckless economic and moral damage.

The processing of personal data by Google is unlawful and pursues commercial purposes, the data subject therefore has the right to object.

What is interesting in this decision, beyond the privacy and personal data protection issues it deals with, is that it looks at freedom of expression, the public's right to information and the duty to inform.

The abuse of freedom of expression is sanctioned by the arduous procedures of defamation and insult, by the respect of private life. The qualification of denigration, the rules of consumer law, also make it possible to limit the abuse of free criticism of products.

Freedom of expression, the right to information, are generally based on independence and impartiality, good faith. This good faith does not sit well with mercantile interests, or the absence of guarantees as to the reliability of sources.

We see here a real possibility of braking against the expansion of the anonymity of public notices, anonymity so difficult to lift today because of the obligations of confidentiality to which operators are bound.

Judgment of May 25, 2023 Paris Commercial Court RG 2022030651

In this judgment, the court takes note of the incitement to denigration by a platform for collecting opinions, Polish company Gowork, which does not respect the obligations weighing on platforms for collecting opinions on companies, provided for by articles L111-7-2, D111-16, D111-18 of the Consumer Code, L120-1 of the Commercial Code, thus imposing a monitoring constraint on registered companies, and while said platform is remunerated by advertising associated with the company sheet.

“Polygraph”: Decree No. 2023-428 of 1^er June 2023 authorizing the implementation of personal data processing called "Polygraph"

This processing makes it easier to investigate people who submit false reviews of products and companies.

» the decree authorizes for a period of three years from its entry into force, the creation of a processing of character data allowing the automatic collection, processing and analysis of all the online opinions appearing on the interfaces of the websites of online platform operators mentioned in article L. 111-7 of the consumer code. The processing makes it possible to provide competition, consumer and fraud prevention officers with information to help initiate investigations against a professional who has posted online directly or indirect feedback of reviews suspected of not constituting online reviews within the meaning of Article L. 111-7-2 of the Consumer Code and which may give rise, where appropriate, to administrative or criminal measures or sanctions due to breaches of the rules of the consumer code. The decree lists the data and information recorded in the processing, excluding sensitive data within the meaning of the law of January 6, 1978, which is subject to an automatic deletion mechanism. It defines the data retention period, the accessors of this same data and also specifies the procedures for exercising the rights of the persons concerned. It also provides for the submission of an evaluation report to the National Commission for Computing and Liberties six months before its term. »

Lawyer specializing in competition and communication law in Paris: the negative opinion