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The paper proceeds as follows. In Sect. 1, an introduction to the phenomenon of fake reviews in online platforms is presented. In Sect. 2, the legality of fake reviews under the US and European law is discussed. Considering that fake reviews constitute a form of commercial communication, the legal analysis is structured following four widely accepted principles of advertising: authenticity, truthfulness, fair competition, and legality. The legal analysis is complemented by a reference to advertising self-regulation codes, which also contain relevant provisions for the purposes of this study. After reflecting on issues related to liability, cause of action, and competence, Sect. 3 presents different proceedings related to fake reviews followed in the US and three European countries, the UK, Italy, and Spain, offering an overview of the administrative and judicial avenues explored so far to punish fake reviews. Section 4 concludes by discussing the analysed proceedings and recommending some measures that public authorities and stakeholders can implement to deal with fake reviews more efficiently and to ensure transparency and fair competition in online market places. Finally, regarding the principle of legality, it should be noted that convictions for defamatory fake reviews in the US are scarce. Be that as it may, in some proceedings, businesses have succeeded and have recovered large damage awards against the authors of defamatory reviews. Probably the most illustrative case is Fireworks Restoration Co. v. Hosto, in which the court sentenced the defendant for writing fake reviews on Google and Yahoo.Footnote 66 The defendant, a former partner of the plaintiff, used real customers' names and information and pretended to write on behalf of many unsatisfied consumers. The company won $ 1,150,000, including $ 150,000 in punitive damages.Footnote 67
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In June 2019, the CMA launched a work program aimed at tackling fake and misleading online reviews. Among other actions, the CMA urged Facebook and eBay to act to stop the sale of fake reviews through their sites. After performing some web sweeps in the period November 2018 to June 2019, the British Commission was concerned about over 100 eBay listings, offering fake reviews for sale. It also identified 26 Facebook groups where people offered to write fake reviews or businesses recruited people to do so on popular review sites. The CMA made it clear that it was not alleging that Facebook or eBay intentionally allowed this content to appear on their websites and stressed that both companies were cooperating in the removal of fake reviews. Finally, it is interesting to underline that, according to the CMA press release, this action with Facebook and eBay is the "first phase in a wider program of CMA work aimed at tackling fake and misleading reviews."Footnote 71 'Firm to Pay FTC $ 250,000 to Settle Charges That It Used Misleading Online Consumer and Independent Reviews', FTC, Press Release 15.03.2011. Available at: https://www.ftc.gov/news-events/press-releases/2011/03/firm-pay-ftc-250000-settle-charges-it-used-misleading-online. Since 2014, the FTC has decided different cases concerning undisclosed endorsements in social media profiles, usually published by celebrities and influencers. The line that divides this kind of covert advertising and fake reviews is often blurry. For instance, in Sony's PS Vita Promotion case, the FTC declared a breach of the FTCA for the publication of some laudatory tweets about Sony's PS console. As it turned out, the allegedly independent tweets came from some employees at the request of Sony. 'Sony Computer Entertainment America To Provide Consumer Refunds To Settle FTC Charges Over Misleading Ads For PlayStation Vita Gaming Console', FTC, Press Release 25.11.2014. Available at: https://www.ftc.gov/news-events/press-releases/2014/11/sony-computer-entertainment-america-provide-consumer-refunds.
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