expressions that are defamatory. The denigrating review, therefore, may even be criminally sanctioned if it integrates the extremes of libel16. More specifically, the use of fake reviews by the trader to praise its own goods and services or to discredit the goods and services of competitors may be an act of unfair competition against the competitor and a deceptive trade practice against the consumer. At the European level, several legislative instruments contain provisions that are highly relevant to issues mentioned. Among the various applicable areas, advertising regulation deserves particular attention. Within the EU, two key directives govern advertising practices, each with a distinct scope and objective: the Misleading and Comparative Advertising Directive (MCAD)17 and the Unfair Commercial Practices Directive (UCPD)18. The MCAD primarily aims to protect traders from the negative effects of misleading advertising, while the UCPD is focused on safeguarding consumers from unfair commercial practices more broadly. Despite their different orientations, the two directives overlap in several areas and share a commitment to ensuring authenticity and fairness in commercial communications. Three provisions are particularly relevant in this context. Article 2(b) MCAD defines misleading advertising as “any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed (…)”. Article 7(2) UCPD states that a trader engages in misleading commercial practices by omission if they fail to make the commercial intent of a communication clear, when it is not already evident from the context. Annex I to the UCPD provides a list of commercial practices that are deemed unfair in all circumstances. Notably, item 22 prohibits “falsely representing oneself as a consumer.” These provisions can be directly applied to certain forms of fake reviews, especially when commercial intent is concealed or when businesses generate false endorsements that mislead potential buyers. 16 For the Italian case-law, see recently Cass. pen., 23.1.2017, n. 8482, in Guida al diritto, 2017, 16, p. 98. 17 Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. 18 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/ EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’). 560 ANGELO VENCHIARUTTI
RkJQdWJsaXNoZXIy MTE4NzM5Nw==