Arjun V Sunil
Introduction
While the advent of the digital age and the ubiquitous prevalence of social media in recent years has resulted in a powerful medium for the dispersion of important information, it has also led to a surge in targeted and concerted effort to spread misinformation and defamation. The Kerala High Court’s recent orders on “Review Bombing” are a welcome move to curb this new internet menace. The petitions filed by the director of the Malayalam film Aromalinte Adyathe Pranayam, Mubeen Rouf, as well as the Producers’ association allege instances of review bombing by Film review YouTube vloggers and social media influencers upon the release of films. The petitions prayed for a “gag order” directed towards the Union of India (Ministry of I&B), CBFC, BIS etc. seeking to ensure that such influencers and vloggers do not publish any reviews for at least seven days after the release of his film. Consequently, the Kerala High Court passed consecutive interim orders directing the state police and other responsible authorities to control this activity. It was observed that as the matter is sub-judice, the instances of review bombing have significantly reduced in the state, presumably in fear of legal repercussions.
Determining Review Bombing, juxtaposing bona fide criticism and deliberate denigration
Review bombing is an internet activity where certain content or work is attacked discriminately by anonymous individuals in the form of fake reviews with a malicious intent to lower its reputation rather than present a bona fide critical analysis of the material. This is usually associated with the release of new films or the publishing of a book. There have been several allegations of review bombing in recent times. ‘Goodreads’, the book review website has been bombarded with negative reviews on books published by new authors. Similarly, users on websites like IMDB have reported certain films being disparately affected by user reviews like the film Gunday, which suffered from bad reviews owing to a Bangladeshi group spamming negative reviews as the film portrayed a controversial remark on the creation of Bangladesh, albeit the film performing well in the big screen. Several other examples like The Last Jedi, The Little Mermaid and the video game franchise Last of Us Part-II.
How do the Kerala High Court’s latest orders address this cyber-activity? It is imperative to understand that the jurisprudence on this intersection of Technology and Entertainment law is very scarce. Therefore, the final judgement that the court would deliver would be conducive for the emergence of new jurisprudential thought on this issue.
What constitutes review bombing?
Primarily, it is essential to define and limit the extent of what constitutes review bombing. The key elements of this activity are laid down.
- An internet activity.
- Performed by individuals either acting anonymously or under their own identity.
- Content or material is attacked in a targeted manner in the form of false reviews, almost often a mass reaction.
- With a malicious intent to depict material in a dishonest manner to bring repute or disrepute through illegitimate statements about the work or the owner of the work.
- An inherent lack of fair criticism.
- Maybe done for monetary gain.
Therefore, review bombing can be said to fall broadly under the listed elements. However, it is also paramount that an intelligible distinction must be made out between fair criticism and an intentional exercise of maliciously flooding false reviews. So, what exactly is fair criticism and how to distinguish it from malicious reviews?
Fair criticism and the Doctrine of Fair use
Firstly, it is observed that the court in its first order has reinstated the stand of the Supreme court that a film work is an intellectual property. It has made a deliberate effort to create a distinction between fair criticism of an intellectual property, i.e., a film or any such material that may fall into this definition; and a motivated and calculated attempt to denigrate such material with an intent to extort or blackmail or for unjust enrichment. The court has also flagged acts like review bombing to be an attack on property rights of filmmakers. However, it must be again stressed that this should not lead to a crackdown on fair criticism by the public and other agencies. While, the High Court has emphasised on regulating the activity by directing the state police to come out with a protocol to tackle this cybercrime, a large onus is placed on the regulating authorities to articulate requisite guidelines to counter such potential flimsy claims. Otherwise, it would set a negative precedent jeopardizing the cardinal right to free speech and expression under Article 19(1)(a).
An evolved doctrine in the spectrum of Intellectual Property law is the Fair Use Doctrine based upon the TRIPS agreement as well as the Berne Convention. It is essentially an exception to copyright infringement in the form of fair review or criticism. In India, it materialises in the form of Section 52(1)(a) of the Indian Copyright Act, 1957. Under this provision, an individual is permitted to limit the usage of any copyrighted work without the express or implied consent of the author of the work, provided that such use is restricted to private research, criticism or review for reporting current events. The Doctrine, essentially qualifies the exercise of bona fide review of a material. Whereas the freedom of speech and expression guaranteed by the Indian Constitution as a fundamental right of every citizen, further strengthens this privilege. The court had rightly pointed out that criticism of films is an integral part of the film industry. It is very well acclaimed by the film industry that the work of film critics and reviewers has assisted in the overall enrichment of films. It is extremely pertinent to not downplay the contributions made by unjustly taking down any negative reviews or views voiced by individuals. Therefore, the need to demarcate again clearly what constitutes review bombing and to delineate it very well from bona fide criticism is crucial.
Secondly, speaking of bona fide reviews, the Madras High Court had last year dismissed a criminal revision petition which alleged negative defamatory reviews chargeable under Section 500 of the IPC, made against the petitioner was posted on Google Maps. The defendant in the instant case, had availed services from the petitioner who ran a law firm. It is noted that upon the rendering of the services, the defendant was disappointed with the said service and thus, posted a negative review based on his own experience and opinion. The Court denied the existence of the offence of defamation as the defendant was merely expressing her opinion, thus invoking the defence of truth. It further highlighted the importance of the internet being a free platform and as a means of expressing and communication. At this juncture, it is evident that once the distinction is made between bona fide and mala fide intentions, the offence can be narrowed down to its very core elements. Therefore, if it can be substantiated that there was no evidence of bona fide intention, i.e., suppose, in the instance of posting a review upon availing a service, evidence rules out any proof of the perpetrator availing such service, a prima facie presumption arises regarding the character of such comments made, hence further buttressing the claim of malicious intent. While such lack of bona fide intention is inadequate to prove the offence, it is effective in creating the requisite distinction. As the offence is made out, it is now a matter of how to tackle this menace.
Policy lapse and the conundrum of enforcement
Review bombing is either done by anonymous users on the internet spreading false reviews or by alleged Social Media influencers and YouTube vloggers whose content is widely consumed by the masses. It is evident that in both the instances, the common denominator is the crucial requirement of regulation of malicious remarks, in contradistinction to a fair and bona fide review of literature or media.
In the first instance, an intrinsic feature of review bombing is the capacity of the perpetrator to act anonymously. Although the internet guarantees privacy and provides a platform for exclusive anonymity, breach of this privilege by users with deleterious intentions to spread misinformation or to engage in defamation would be tantamount to certain cyber offences. To be precise, this would fall foul of Sections 66(C) and 66(D), read with Section 79 of the IT Act 2000 (“the Act”). Perpetrators, often take up the disguise of any other person or put on a fictional identity to further disseminate their agenda. Reportedly, few online platforms and pages have come to light who have been operating without an identity or a credential. The larger concern is that this is just a facet of the whole activity, which is punishable. Further, Section 79 exempts intermediary liability under certain circumstances, hence necessitating legal action being taken against perpetrators. This in turn, absolves the obligations of the intermediaries to monitor and curb malicious data. Moreover, it can still be argued that prosecuting individual offenders, would be a tedious process. Extraction of substantive evidence, as well as tracking down potential violators, would be highly infeasible. Therefore, this calls for revamping regulatory mechanisms to shift the burden to platforms and intermediaries who host such content.
Due Diligence:
With no concrete law or statute in place now to address review bombing, holding platforms accountable is the more viable way to tackle this issue without jeopardising the right to privacy or the right to express one’s opinion truthfully on the internet. In the US, an author on Goodreads was found generating fake positive reviews of her own book whilst attacking the works of other authors. This was done by creating multiple fake accounts to shield her identity. This widens the scope of review bombing, placing it within the larger umbrella of posting fake reviews, albeit negative or not. The platform affirmed that it has removed the reviews posted by the author on its website but concerns remain on the little to no verification process required when posting reviews. The website also permits users to post comments even before the official launch of the book. However, the platform has decided to revitalise efforts to moderate content that violate community guidelines by intervening during times of high frequency. This signifies a well required shift in burden to regulate content posted on their websites. Platforms need to be held accountable for circulation of malicious comments and reviews. Due diligence by platforms and influencers would be highly time and cost effective vis-à-vis a litigation suit.
Due diligence is two-fold. Firstly, Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) imposes an obligation on Intermediaries, which includes online platforms to make reasonable efforts to cause a user of a computer resource not to interalia host, display, publish, transmit or store any information that knowingly and intentionally communicates any misinformation or information that is patently false or untrue or misleading in nature. The Intermediary is empowered to disable access to non-compliant users as well as remove unwarranted information. Further, the intermediary shall comply with additional due diligence measures such as appointing a Chief Compliance Officer and a nodal contact person to communicate with the law enforcement agencies round the clock. The IT Rules also grant remedial measures to the users to redress their grievances. The Intermediary upon receiving actual knowledge in the form of an order of a competent court or notification from an appropriate government is under an obligation to not store, host or publish defamatory information. The defamatory information must be removed or access to it must be disabled, at the earliest but within a maximum period of 36 hours from the order of the court or notification released by the government authority. Therefore, the IT Rules can broadly assist in dealing with review bombing.
Alternatively, review bombing by social media influencers can be dealt with casting obligations on them. As fake reviews can also have commercial goals, they can be characterised as commercial communications which are subject to advertising regulations. The Advertising Standards Council of India (ASCI) Guidelines, 2021 (“Influencer Guidelines”) provides for disclosure and due diligence measures to be followed by influencers when advertising content. The Influencer Guidelines places an onus on social media influencers to disclose to their audience that the content advertised by them is promotional or that it is solely their personal opinion as an influencer. In Marico Ltd v. Abhijeet Bhansali, the sheer outreach and influence of influencers was touched upon. Influencers having a considerable amount of following garner a loyal viewership on which they wield significant influence and power. The goodwill generated can be used to promote a brand, influence the audience to do or to omit to do an act. As a possessor of power of this degree, they are very well under an obligation to ensure the credibility and the nature of what they say and advertise. An influencer cannot deliver statements with the same amount of ignorance as a normal person.
Further, the positioning, duration and manner of the disclosure have been expressly provided for higher compliance. Different disclosure methods have been specified for different social media platforms. This helps create awareness about the product or service advertised, hence alarming consumers about the veracity and reliability of the content consumed. While, this may not completely curb review bombing, it assists in keeping the purported film reviewers in check.
New Developments:
To fill in the lacuna existing in the legal framework, the Department of Consumer Affairs (DoCA) along with the Bureau of Indian Standards (BIS), has released a draft framework ‘Indian Standard (IS) 19000:2022’ to monitor online consumer reviews on E-commerce platforms. Although not binding yet, when compliance becomes mandatory, violators would be charged under ‘unfair trade practices’ under the consumer protection laws. The BIS Standards would require platforms to appoint review administrators to vet reviews posted by users either manually or by automated means. However, the issue of traceability and actual enforcement persist. The BIS Standards currently cover only E-commerce platforms like Amazon, Flipkart, Myntra, etcetera. but expanding the purview to accommodate movie review websites and book review websites would prove essential considering the robust transformation of data and information technology in the cyberspace.
Cross-jurisdictional efforts to counter review bombing
As discussed above, In India, the legal framework and jurisprudence on review bombing is still in its infancy stage. Therefore, in order to assist in its development, a holistic understanding of the law in contemporary jurisdictions is required.
i. Canada
In Canada, the Court of Queen’s Bench in Houseman v. Harris has articulated a nascent viewpoint to curb review bombing. Although the court never used the term, the act of posting false negative reviews of a product or a service online was dealt with and the plaintiff was awarded damages of CA$ 240000 owing to the mental and financial distress caused. As the facts were axiomatic to hold the defendants liable, they were charged for the tort of defamation. This case holds immense jurisprudential value as it has recognised as well as found liability against the act of review bombing. Further, the court went on to elaborate on the pervasive nature of internet communication and its tremendous power to harm an individual’s reputation. Time and again, emphasis was placed on the internet’s extraordinary capability to viciously replicate any malicious remark.
ii. United States
Codified rules can also assist in countering this menace. The US Government’s Federal Trade Commission (FTC rules) last year had proposed a new set of rules to combat the widespread proliferation of buying and selling fake reviews. The FTC rules aim to deter users from posting fake reviews and imposes liability on not only the users, but also the middlemen and the ultimate beneficiaries behind it. It also lays emphasis on not supressing legitimate reviews and the importance of codifying the law. A new offence called “Review Hijacking” is also defined where offenders use reviews of a different product item and transfer them to an entirely different product. The rules also levy penalties up to US $50000 on offenders. A primary drawback to the FTC rules is the actual enforceability as the rules do not explicitly obligate social media platforms or review websites like Yelp to adhere to the rules. These platforms enjoy an extensive degree of autonomy in regulating their content. This immunity is conferred under Section 230 of the Communications Decency Act which is in tangent to Section 79 of the IT Act. Unfortunately, this might lead to unethical moderation of content without any substantive grounds. Further, the rules would not be applicable when the offender is in a foreign territory where the jurisdiction would not extend to. Additionally, another piece of legislation that is in the works is the Consumer Reviews Fairness Act’s (CFRA) California bill which too aims to prohibit the dissemination of fake reviews. The bill defines fake reviews exhaustively to include positive, negative or neutral reviews that is not honest or impartial. It also does not reflect the actual experience of the users. Similar to the FTC rules, it also imposes hefty fines of violators.
Moreover, the US Courts have extended the scope of the Lanham Act, which is a legislation concerned with fair competition and to deter unfair advertising to impose liability on individuals posting negative fake reviews. Despite various legislations and authorities to prosecute violators, the convictions have been scarce. An outlier is Fireworks Restoration Co v. Hosto, in which the defendant engaged in writing fake reviews on Google and Yahoo using the identity of other individuals. He was liable for damages amounting to $ 1,150,000 including $ 150,000 in punitive damages. This case is similar to the Canadian point of law where the court imposed liability on the defendants.
iii. United Kingdom
In the UK, the CMA (Competition and Markets authority) is a powerful regulatory board entrusted to combat fake reviews in the country. The authority has engaged in five false-review matters till date, although having not imposed a fine so far. In June 2019, it initiated a program to tackle false and misleading online reviews urging platforms like Facebook and eBay to take actions to stop the market of selling and buying fake reviews. In similar vein, the British Advertising Standards Authority (ASA) upheld a complaint made against TripAdvisor for alleging to host reliable information on their platform while going against that claim by hosting illegitimate negative reviews.
iv. Italy
The Lecce Criminal Court convicted the owner of Promosalento, a company that published fake reviews about hotels on TripAdvisor. The owner was sentenced to jail for 9 months and ordered to pay approximately € 8000 in costs and damages. In this instance, the court imposed criminal liability under the Italian criminal law on the individual for writing fraudulent reviews using a false identity. The court’s ruling has been hailed as landmark, although controversial, as this is the first court ruling where an individual has been sentenced to imprisonment for writing fake reviews.
Key takeaways for the Indian scenario
The Canadian approach to recognise review bombing as a tort, widens the scope of tort law in general as well as finds liability against perpetrators who could have gone scot-free earlier. Imposing civil liability on an offence which is civil in nature is the most efficient way to tackle such menaces. Invoking tort jurisdiction in Indian civil courts to address this issue can assist in augmenting the tort law mechanism in India.;
In the US, as the legal scenario is vastly different from India, the FTC Rules enacted to combat review bombing, primarily emphasises on the acts of buying and selling fake reviews by imposing liability on users, middlemen and other beneficiaries. This is larger in scale to singular acts of posting review bombing. In India, while few large-scale instances of review bombing or review hijacking have occurred, the scale seen in the US and consecutive damage has not been reported. Further, the rules also permit platforms to regulate their own content, which has the possibility of unethical moderation. Such law would particularly prove detrimental in India, as we are already facing an uptick in false content being shared profusely online.
Similar to the CMA in the UK, the Draft BIS Standards also imposes liability on platforms to actively engage to curb hosting false reviews. The platforms are urged to appoint administrators to keep check on any harmful activity that would constitute as Review Bombing on their platforms. This in turn ensures that intermediaries and platforms take the first step to keep violators in control.
The Italian point of law is not sustainable in the Indian scenario. The act of review bombing by its very nature, does not constitute a criminal act. Firstly, a mere act of posting false reviews cannot be considered as a crime against the state and hence, renders it unviable to be considered as criminal act. Secondly, even if we are going by the assumption that review bombing is a crime, there needs to be an amendment of the criminal laws to accommodate the said act into its framework. These concerns pose limitations on the effective implementation of the Italian court’s decision in India.
The Way Forward
The internet is indeed a powerful weapon. Any activity performed on this medium must tread with caution. Given the anonymity the internet provides, it’s not surprising that it has often become a hotbed for cybercrimes. It is unfortunate that any possessor of a smartphone can hastily express their distaste towards the work without even viewing the same. However, apart from systemic intervention by the state, efforts can be made to adopt and train Large Language Model (LLM) systems to study data patterns that suggest fraud or false data inputs and to flag such information to the platform. This would reduce the burden on other entities and effectively combat false reviews.
The need to protect the cardinal right to freedom of speech and expression cannot be understated, however it is equally important to safeguard the hard work and dedication of film makers. Jurisdictions across the globe are seeking to tackle this menace without hampering other interests. Nonetheless, the issue of enforceability remains a lingering concern. Even in countries like the US, where there are adequate regulations and public authorities to oversee acts of review bombing, actual enforcement often falls short. Therefore, a one-fits all approach towards review bombing is unsustainable and rather, a comprehensive effort to adopt various strategies is the way forward.
The author is a third year law student at the Gujarat National Law University, Gandhinagar.
NUALS Law Journal 