IV. RANKING OF COMMERCIAL ESTABLISHMENTS ON DIGITAL PLATFORMS BASED ON COMMENTS LEFT BY USERS In the introduction to this text, we raised the challenges posed to fair competition by the practice of ranking commercial establishments on digital platforms based on comments left by users of those platforms. The central question we ask is whether such practices can affect free competition and to what extent mechanisms prohibiting acts of unfair competition can be effective in protecting the interests of economic agents harmed by these practices. We begin by noting that the institution of unfair competition represses acts that violate the values of fair competition to which economic agents wishing to operate in the open market are bound. We also note that European regulations require digital platforms to apply transparent, fair, and non-discriminatory conditions when rating the economic agents that use them. We further conclude that this obligation also applies to situations where there is no direct competition between the service provider and the economic agents (professional users) of its digital platforms. In the specific case of ratings of commercial establishments based on “comments” from the users of digital platforms themselves, the problem is all the more complex, as they do not necessarily have effective control over the suitability of the users who post the comments on which they base their ratings. If it is proven that false or defamatory comments were posted by an economic agent who is a direct or indirect competitor, such behavior will necessarily fall under one of the types of conduct prohibited by unfair competition law. The scope of the prohibition of unfair competition is not limited by the digital or analog medium in which the unfair act occurs, which in this case is particularly damaging to the competitor’s image and, therefore, where the restriction on unfair behavior will be most relevant. However, in this case, liability will fall on the agent in question, and not on the electronic platform, if the latter is unaware of such acts and acts accordingly when alerted to the unlawful act. The problem arises with the possibility (in fact, a strong probability) of the existence of false, incorrect, or unfair comments by anonymous users, or whose identity cannot be verified, and to that extent, it cannot be confirmed whether Regulamento dos Mercados Digitais, p. 196–197. 579 FAIR COMPETITION IN THE RANKING OF COMMERCIAL ESTABLISHMENTS
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