The impugned conduct
16 Between 12 July 2016 and 30 November 2018, 21,939 reviews were generated using the Fast Feedback feature and published on the website. This refers to the publication of the automatically generated reviews compiled by businesses, not to reviews where the customer chose the option to write and publish their own review. Of the automatically generated reviews, 17,531, or approximately 80%, were published by default, that is, not because the customer clicked 'I agree'.
17 Between 12 July 2016 and around March 2018, reviews that were compiled using the Fast Feedback feature (not written by the customer) were visible on the profile of the business in the following format:
That included both reviews published by default and reviews where the customer had clicked 'I agree'. (It was common ground that in this box in the SOAF the words '[first name of customer]' are inadvertently omitted from the beginning of the second last line - see the two later review formats below.)
18 The ACCC first communicated with Service Seeking by letter dated 9 March 2018, in which the ACCC said that it was investigating concerns about the Fast Feedback feature. From around March 2018 until around August 2018, reviews compiled using the Fast Feedback feature, not having been written by the customer, appeared on each relevant business's profile in the following form:
19 It is clear from evidence of actual Fast Feedback reviews that the reference to 'Following the link' here refers to the text below the link 'Learn more about Fast Feedback here'. There is no evidence as to what a user would encounter if they clicked on that link.
20 That format (and the further one mentioned below) was applied to all Fast Feedback reviews, whenever published. So, for example, if a review was first published in January 2018, in the first format, it remained visible after the change in format in March 2018 but the new format was applied to that review and to all others.
21 From around August 2018 until 13 May 2019, such reviews were visible on each business's profile in the following form:
22 I have mentioned that Fast Feedback reviews began to be phased out from 29 November 2018. After that date, it was no longer possible for businesses to create new reviews using the Fast Feedback feature. From 13 May 2019, all Fast Feedback reviews that had not received the actual approval of the customer were no longer visible on the website. The SOAF says that they were not visible 'at all'. While it is not made explicit, I take this to mean that the reviews that were no longer visible were not counted in the number of reviews shown for the business and the star ratings were no longer included in the overall star rating shown.
23 The parties have agreed as a fact that the Fast Feedback reviews published on the website comprised representations made by Service Seeking on the website that purported to be testimonials by customers who have used the services of businesses on the website and relating to the services of those businesses. For each of the three review formats as set out above for each of the three periods identified, this is said by the parties to have been because, in their terms and in the context in which they appeared, the reviews and star ratings 'purported to have been given by such Customers, but … were created by the businesses themselves through the Fast Feedback feature'. These representations were also made in the period between 30 November 2018 to 13 May 2019 because the reviews remained on the website, even though no new reviews were published using the Fast Feedback mechanism.
24 These agreed facts are clearly borne out in relation to the first format of Fast Feedback reviews which was published until March 2018. Those reviews were expressed in the first person above the name of a customer. That conveyed that the customer had provided the review. It conveyed that by clear implication if not expressly.
25 That is less clear in relation to the second and third formats of the reviews as they appeared on the website between March 2018 until August 2018 and between August 2018 until 13 May 2019 respectively. Reviews in the second format were not expressed in the first person as if they came directly from a customer. In that format, the statement that appears after the words 'Fast Feedback:' is directly attributed to the business. Nevertheless, I consider that the agreed fact that by publishing the reviews, Service Seeking made representations that purported to be testimonials by customers who had used the services of the businesses, is borne out by the terms of the reviews in the second format, considered in the context of the website as a whole. Most obviously, although reviews in the second format do not purport to come directly from a customer, they do purport to be the business's report of the customer's views. The review is given above the name and location of a specific customer. Reasonable users of the website would be likely to read it as conveying the actual views of that customer about the services the business provided, which can be considered to be a testimonial given by the customer. Certain contextual matters were likely to reinforce that impression, namely:
(1) the fact that the view attributed to the customer appears after the words 'Fast Feedback', since in the present context 'feedback' must mean feedback on the services, which would ordinarily come from the recipient of the services, that is, the customer;
(2) the default reviews in the second format appeared under the prominent heading 'Reviews'- the ordinary meaning of 'review' which is relevant in this context is that it is an evaluation of services which is given by the person who received the services, and connotes that it is given by someone other than the business reviewed;
(3) it follows from the previous point, and from common experience, that reasonable users would naturally assume that the point of posting the reviews was to help a potential customer find out what previous customers of a business thought about the business, so as to help the potential customer decide whether to use the business - not to find out what the business thought about itself;
(4) the default reviews were mingled with genuine customer reviews; and
(5) each default review appeared under a star rating, which reasonable users would generally take to be a rating given by a customer, and would be surprised to learn was a rating that the business gave itself.
26 In relation to the third format set out above, the agreed fact that by publishing the reviews, Service Seeking made representations that purported to be testimonials by customers who had used the services of the businesses is even less clearly borne out. That is because, unlike the first and second formats, Fast Feedback in the third format is not attributed to the customer, either expressly or by clear implication. It is, in form, a report by the business about its own performance.
27 Nevertheless, I accept that by publishing reviews in the third format, Service Seeking did make representations to the effect that each named customer had given a testimonial about the services of the relevant business. The contextual matters I have just mentioned in connection with the second format all applied in relation to the third format reviews. Taken together those matters are likely to make the reader receptive to the impression that what is said after the words 'Fast Feedback' in the third format reviews is the view of the named customer.
28 Another relevant contextual matter is that many of the persons likely to have viewed the Fast Feedback - prospective customers looking for tradespersons or other service providers - are likely to have fallen somewhere between a customer considering a substantial purchase 'in the calm of the showroom' and a person encountering 'an unbidden intrusion on the consciousness' in the form of (say) a television advertisement: see Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [47]. Someone looking for a business to fix a faulty light switch, for example, may well be interested in the content of the reviews, but could be expected to skim many of them rather than read them all closely.
29 In all that context, a statement, for example, that 'Axolotl Electrical reported the job was completed on time, on budget, to a professional standard and with good communication' is liable to convey that those are the views of the customer. The question is whether that misconception is properly to be attributed to ordinary or reasonable members of the class of users of the website: see Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 at [105]. Perhaps some reasonable users would read the statement carefully and understand it as only conveying the view of the business about its own performance. But I do not consider that users who did not read the statement carefully and understood it as representing the actual views of actual customers either reacted in an extreme or fanciful way (see Campomar at [105]), or failed to take reasonable care of their own interests (see ACCC v TPG at [39]).
30 The parties have also agreed that these representations as to customer testimonials were not reviews and ratings of services by customers who had used the services of the business, but were instead reviews and ratings created by the business through the Fast Feedback feature and automatically published on the business's profile by Service Seeking through the default publishing mechanism which I have described. This may be accepted in respect of the approximately 80% of Fast Feedback reviews that were published by default and not because the customer clicked 'I Agree'.