Legal remedies to fight against fake reviews and hidden advertising of influencers

Royal Decree Act 24/2021 of 2nd November transposes several European Union directives, including Directive (EU) 2019/2161 of the European Parliament and of the Council of 27th November, and introduces amendments to both, the General Act for the Defence of Consumers and End Users (hereinafter, TRLGDCU) and the Unfair Competition Act (hereinafter, LCD) in relation to fake reviews and the protection of consumers in a digital environment.

With regard to the TRLGDCU, two new sections have been added to Article 20, which deal with the information that must necessarily be provided in the commercial offer of goods and services.

  • It is now mandatory to provide the criteria taken into account when positioning the results and their relevance. This information must appear in a specific form and must be accessible in the same place where the results are offered.
  • Likewise, entrepreneurs must now provide access to reviews of the products on services, informing that said reviews they have been made by consumers and users who have actually obtained the product or enjoyed the service concerned. This therefore includes the duty of the entrepreneur to verify in advance that they have purchased the good or enjoyed the service concerned.

With regard to the LCD, the content of Article 26 is amended to include as a misleading commercial practice the fact of granting a higher classification to a good without disclosing that this is due to paid advertising or a specific payment. Likewise, Article 27 is amended in relation to misleading commercial practices, including two new cases, which are the following:

  • Adding reviews that are identified as belonging to real consumers or users without reasonable and proportionate measures having been taken to ensure that they really belong to them.
  • Adding or commissioning third parties to include false or misrepresented consumer reviews or endorsements for the purpose of promoting goods or services.

In this context it is worth recalling that on January 1st, 2021 the Code of Conduct on the Use of Influencers in Advertising came into force, whereby those companies or advertisers belonging to the Spanish Association of Advertisers (AEA) or the Association for the Self-Regulation of Commercial Communication (AUTOCONTROL), and that have adhered to the aforementioned Code, as well as those companies in the sector or influencers that voluntarily decide to adhere to it, must guarantee that the advertising coming from influencers is fully identifiable, thus avoiding incurring in a hidden commercial practice that misleads the consumer, as regulated in the LCD.

The information contained in this note should not in itself be considered as specific advice on the matter under discussion, but only as a first approach to the subject matter, and it is therefore advisable that the recipients of this note obtain professional advice on their specific case before taking specific measures or actions.

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