As we previously announced, the so-called Modernisation Directive was adopted within the EU in November 2019. It amends (revises) the content of four already existing directives relating to the sale of goods to consumers, including the very important Consumer Rights Directive. Given that this is a directive (and not a regulation), its provisions will first have to be transposed into Czech law.

The common theme of all the amended instruments is the insertion of new provisions intended to harmonise within the EU the procedures for imposing sanctions for breach of obligations (arising from these instruments), including the type and level of sanctions. Similarly to the GDPR, sanctions based on the trader’s turnover are being introduced for certain cases of breach, up to 4% of the trader’s annual turnover (in the Member State concerned or Member States concerned). However, we will not address this issue in greater detail in this legal circular, as it is very frequently and enthusiastically covered by other entities, including the media.

In this legal circular, we will instead focus on the new regulation relating to user reviews, which will be reflected in the provisions of the Directive on Unfair Commercial Practices. Specifically, a new provision is being added to Article 7 of the Directive on Unfair Commercial Practices, which deals with so-called misleading omissions, reading as follows: “If a trader provides access to consumer reviews of products, information on whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be considered material.” This means that this new information obligation will apply to traders who enable the display of user reviews on their websites or within their other applications.

Recital 47 of the Directive further explains that where “traders provide access to consumer reviews of products, they should inform consumers whether processes and procedures are in place to ensure that the published reviews originate from consumers who have actually used or purchased the products. Where such processes or procedures are in place, traders should provide information on how the checks are carried out and provide consumers with clear information on how the reviews are handled, for example whether all reviews are published, whether positive or negative, or whether these reviews have been sponsored or influenced by a contractual relationship with the trader.”

Furthermore, two new misleading practices relating to user reviews will be added to the list of commercial practices which are always considered unfair and which are set out in the Annex to the Directive. A misleading practice will always be “claiming that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.” And further, a misleading practice will also be “submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements in order to promote products.” In connection with this provision, however, it is necessary to point out that the Czech and German versions of the Directive differ here from the English or Spanish versions of the Directive, as the latter, for example, do not mention social networks at all. Nevertheless, from this fact it can be inferred that the factual basis in question will not only cover the trader’s conduct relating to content placed within the trader’s websites or other applications, but may also cover the trader’s conduct manifested elsewhere in the internet environment, even though the trader may not have full control over such content. However, we will have to wait a little longer for the final form of the specification of this factual basis in the Czech environment.

In conclusion, we note that we will address other interesting areas from the Modernisation Directive in one of the following legal circulars.

Josef Aujezdský

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 3/2020 intended for members of this association.

This text was translated from Czech to English using an AI translator.