services. In the beheavioural studies, the information whether reviews really come from consumers who had previosuly used a particular tourist service, turned out to be very important for a decision on the selection of a tourism service.92 However, if the provider of the online marketplace expressly confirms that reviews originate from consumers who have actually used or purchased a product or a service, the provider has two additional obligations: to take reasonable and proportionate steps to check that reviews really originate from such consumers,93 and to explain the mechanism by which it is proven that the reviews trully originate from the consumers who had previously used the service or purchased the product, as well as how the reviews have been analysed.94 If the operator confirms that the reviews originate from the consumers who have actually used or purchased the product but he does not take the necessary steps to check it, his commercial practice can be considered as unfair.95 Finally, a significant advance in the modernisation of information requirements on the online market is also the extension of the so-called black list of commercial practices which are in all circumstances considered as unfair.96 Most unfair commercial practices always arise from the violation of obligations to inform, in a transparent manner, about search queries and the consumers' reviews on online marketplaces. We speak here of unfair commercial practices which may be of particular importance for consumers who must be well-informed on online tourism services marketplaces. The following acting is always considered as unfair commercial practice: o provision of search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.97 The payment of an advertisement, or the payment for a higher rank are by themselves not considered to be unfair commercial practices. However, consumers must be informed, in a clear and transparent way, about whether a higher rank has been paid. This information must be given in a concise, easily accessible and understandable form,98 or otherwise consumers are deprived of the essential information on which their decision on the selection of offer must be based. In the context of online tourist services market, this type of information is crucial for the selection of a tourism service. The circumstance that the rank of a tourism service is determined by the payment of a higher rank has impact on the consumer's attitude regarding the extent to which the selection of a tourism service can be based on search results; o stating that reviews of a product are submitted by consumers who have already used or purchased the product without taking reasonable and proportionate steps to check that they actually originate from such consumers.99 As already said, the provider of the online marketplace is not obliged to expressly state that the reviews are submitted by consumers who have previously used or purchased the product. In principle, there is no obligation to check whether the reviews are authentic.100 However, if the provider expressly states that the reviews have been posted by consumers who had 92 For more see under 1. 93 For example, reasonable and proportionate steps ought to include: requiring the booking number, requiring reviewers to register; using technical means to verify that the reviewer is actually a consumer (e.g. IP address check, verification by email), deploying tools to automatically detect fraudulent activity and the like. For more see: Guidance on the interpretation and application of Directive 2005/29/EC, 2021, p. 95. Orientation for reasonable and proportionate steps may also be the ISO Standard: “Online consumer reviews: principles and requirements for their collection, moderation and publication” (ISO20488:2018). 94 For example, have all the reviews been published (both positive and negative), have they been sponsored, has the contractual relation with the trader had any impact on them? See recital 47, Omnibus Directive. 95 See Annex I UCPD, point 23b. 96 Art. 3 (7) Omnibus Directive amended Annex I with new points 11a, 23a, 23b, 23c. 97 See Annex I UCPD, point 11a. 98 See recital 20, Omnibus Directive. In recital 20 of the Omnibus Directive, it is specifically explained that various forms of indirect payment may also be considered as payments for the purpose of attaining a higher rank (e.g. increased commission per transaction or different compensation schemes that specifically lead to higher ranking). 99 See Annex I UCPD, point 23b. 100 In that regard see also, the provisions of Directive on electronic commerce o liability of intermediary service providers apply to the provider of online marketplace (Arts 12-15). See Busch (2016), p. 237.
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