The New York Attorney General's Office recently concluded an investigation into how a medical practice manipulated reviews that consumers posted online about their experiences with the doctor. Even though this enforcement action targeted a small business, the case provides a number of important takeaways for businesses of all sizes.
The NYAG alleged that HIghline Orthopedics engaged in a number of illegal practices to suppress negative reviews and artificially inflate positive reviews online.
What did the doctor do to suppress negative reviews? According to the allegations in the complaint, in order to get platforms to take down negative reviews, he would flag the reviews for removal by falsely indicating that they violated the platforms' policies prohibiting inappropriate conduct. He would also have his office contact patients who posted bad reviews and offer to pay them in exchange for removing the review. In order to prevent bad reviews from being posted in the first place on the medical booking site ZocDoc, the doctor would falsely indicate that patients had not shown up for their appointments; that way, the patient would not be invited to post a review on the site.
And how did the doctor artificially inflate his positive reviews? According to the complaint, he asked friends, family, and employees to leave positive, five-star reviews, regardless of whether they had actually received treatment by the doctor. He also hired some companies to post fake reviews as well, using networks of fraudulent accounts.
In announcing the settlement, Attorney General Letitia James said, "Many patients rely on online reviews when choosing which doctor to trust with their health, and it's important that these reviews are authentic." As part of the settlement, the doctor agreed to pay $100,000 in penalties and to take down all of the fake positive reviews.
It should come as no surprise to advertisers that you shouldn't ask your friends and family, or hire someone, to post fake reviews about your products. When consumers post reviews, the reviews should reflect their honest opinions, findings, and experiences – and if you've incentivized a consumer to post a review, you should ensure that the consumer properly discloses that fact.
But what can you do when a bad review gets posted on a third party review site? Well, as this case makes clear, you shouldn't pay consumers to take the review down, since that can mislead consumers about the aggregate experiences of consumers. As the NYAG alleged here, the doctor's conduct "denied such patients the opportunity to evaluate [the doctor] based on a complete and accurate assessment of other patients' experiences and, instead, enticed them to book appointments with manipulated online profiles."
If you can't pay consumers to take down bad reviews, can you reach out to them, to try to make things right? And, if you're successful, can you then ask them to take down the review? The Federal Trade Commission's point of view on this is that it's fine to reach out to consumers to try to make things right. It's also fine to ask them to update their reviews, but you shouldn't ask them to change or delete their initial reviews, since that "could mislead consumers."
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.