This article was first published in February’s Issue of E-Commerce Law Reports Journal

The UK’s ASA’s decision, issued on 6 January 2016, not to find a website in breach following claims of misleading advertising highlights the growing importance of user-generated content, and contrasts somewhat with prior ASA rulings regarding the visibility of information and clarity for consumers.

Vetted Ltd, trading as Checkatrade, runs a UK directory website which allows users to search for tradesmen such as plumbers or builders. A key feature of the site is how customers can review each tradesperson (or ‘member’), leaving feedback which is then published for other customers to take into consideration. Checkatrade heavily emphasises this system and the transparency it adds to their site: their tagline is ‘where reputation matters’, and their homepage prominently displays the number of reviews published so far. In an industry which has traditionally suffered from the ‘rogue trader’ stereotype, the company’s focus on listing ‘recommended, vetted and monitored trades and service providers’ is certainly an appealing selling point.

The issue

The complaints to the ASA centred on two of the website’s claims: that ‘Once they join, members agree to have feedback from their customers put online for all to see’, and ‘If court action is being taken by the customer or company we will keep the complaint on hold until the courts [sic] verdict. We will also ask for proof of stamped court application and will publish the complaint if the court rules in favour of the customer’. The complainant said that they had submitted negative feedback about a member, but that the trader’s profile had been removed before the feedback was published. A court had also ruled against the member on the same issue, but allegedly this had not been taken into account. As a result, the site’s claims were challenged as being misleading.

Checkatrade’s response

Checkatrade replied that the claims were accurate, but that in this instance an additional policy had been followed because of the individual circumstances of the case. They said that when the complaint was received, they had forwarded it to the trader and given him 21 days to respond. This was in line with their normal procedure: if the matter was not resolved within 21 days, the complaint would then be published on the member’s profile for other customers to see. However, the member had then informed Checkatrade that he was unwell and unable to take on new work, and requested that they suspend his account for six months. This was done in accordance with the site’s sickness policy, and the member’s profile was temporarily removed. Consequently, even though the complainant’s feedback was published after 21 days, neither it nor the profile was visible.

The ASA’s assessment

The ASA ruled on the complaint in January, investigating Checkatrade under CAP Code rules 3.1 (marketing communications must not materially mislead or be likely to do so) and 3.3 (marketing communications must not mislead the consumer by omitting material information). They found that the website’s claims did not breach the CAP Code as consumers would understand them to refer to traders who were currently listed on the site and available for hire. They held that the feedback was published openly, and took no issue with the 21 day response period. However, the ASA did note that since the complaint, Checkatrade had amended their illness policy: now, any profiles suspended because of ill health would be placed in a separate section of the website with the customer feedback viewable. Even though the information still would not appear in active search results, the ASA evidently considered this to be a significant modification when making their decision.

Analysis

User-generated content is an increasingly powerful tool online, and although businesses can benefit hugely from positive feedback, it is the consumers who now have the upper hand. Customers are well aware that reviews can make or break a company’s reputation, especially when they can be shared widely and rapidly via the internet. The scenario in this ruling is indicative of a website trying to monitor the power balance between user and service provider, and we are likely to see many similar conflicts arise in the future. However, it is particularly interesting that on this occasion, the ASA’s decision was not in keeping with its usual drive towards greater transparency. When dealing with similar issues involving so called ‘native advertising'1, the ASA’s message has been plain: attempts to hide advertorial content or pass it off as another form of media are not acceptable, and the nature and subject of the advert should be completely clear. The Checkatrade decision noticeably breaks this trend by allowing a website to make feedback less accessible in certain circumstances. Yet this scenario was undeniably fact specific, and its significance should not be overstated. It is almost certain that transparency for consumers will continue to be the ASA’s main priority, but this ruling should act as a reminder that sometimes, a website’s individual policies will be upheld.