The Federal Trade Commission (“FTC”) recently approved a final consent order against Sitejabber, an artificial intelligence-enabled consumer review platform, for deceiving consumers by misrepresenting that the ratings and reviews it published came from customers who actually experienced the reviewed product or service. In reality, the reviews were collected before reviewers received the products or services, artificially inflating average star ratings and review counts.
In November 2024, the FTC published a complaint alleging that Sitejabber collected reviews of products and services from consumers at the time of purchase, through “instant surveys,” before they had received the products. The FTC defined two categories as problematic: “Instant Feedback Surveys” and “Instant Feedback Product Reviews.”
With regard to the Instant Feedback Surveys, after a customer completed the online check-out process, a pop-up box would display (typically on the order confirmation page) asking the customer to “rate your overall shopping experience so far” on a 5-star scale. Those who provided a rating were then asked to “type a quick message about your shopping experience so far.” Sitejabber published the customer feedback as a merchant review on the business’s Sitejabber.com profile page, and the rating the customer provided contributed to the star rating displayed for that business. Sitejabber did not clearly and conspicuously disclose that these reviews were in fact point-of-sale reviews or that the reviews were incorporated into a business’s Sitejabber rating, leading consumers to believe that the reviews and ratings were from customers who actually had the opportunity to experience the product or service purchased. These reviews generally inflated the companies’ total review counts and overall ratings. In some cases, fewer than 1% of the reviews were from verified purchasers, and without the Instant Feedback Survey reviews, the rating would be more than 2 stars lower. These inflated ratings and review counts were also displayed in Google and other search results.
The Instant Feedback Product Reviews were similar, with an automated survey popping up for consumers at the point of sale (typically on the order confirmation page), asking the customer for product-specific feedback, such as “Why did you choose the [product] today?” The survey would also include a 5-star rating scale and a text box. Sitejabber used the feedback obtained from the Instant Feedback Product Reviews to create product-specific ratings and reviews that were displayed on its clients’ Sitejabber profiles under a “Products” tab. Sitejabber also provided its clients with product review widgets that allowed them to publish Instant Feedback Product Reviews directly on their own websites as product reviews and ratings. Instant Feedback Product Review ratings were also displayed in Google’s paid product search results. The average star-rating displayed did not disclose that the rating may include reviews obtained at the point of sale, before the customer had received the product.
The FTC alleged that this conduct violated Section 5(a) of the Federal Trade Commission Act. 15 U.S.C. § 45. Interestingly, the FTC did not allege a violation of the Rule on the Use of Consumer Reviews and Testimonials (“the Rule”), 16 C.F.R. § 465, which prohibits a business like Sitejabber from writing, creating, or selling consumer reviews that materially misrepresent that the reviewer used or otherwise had experience with the product, service, or business. 16 C.F.R. § 465.2. Perhaps this was because Sitejabber did not technically write, create or sell these reviews, but rather, provided the platform that solicited the reviews from consumers, albeit before they received the ordered products. It is also interesting that the FTC did not pursue any of Sitejabber’s customers, because the Rule also prohibits businesses from purchasing, disseminating or causing the dissemination of reviews about the business or one of the products it sells, if such review materially misrepresents that the reviewer used or otherwise had experience with the product. 16 C.F.R. § 465. It’s possible that Sitejabber and/or one of its customers could have successfully argued that the conduct at issue qualifies for one of the two exemptions in 16 C.F.R. § 465.2(d), which provides that certain prohibitions do not apply to generalized review solicitations to customers and/or mere review hosting. Regardless, Samuel Levine, Director of the FTC’s Bureau of Consumer Protection, stated that “[a]long with our rule on fake reviews and testimonials, cases like this one show that we’ll act to stop all forms of deception in the review ecosystem.” Thus, even if certain review activity might not constitute a technical violation of the Rule, the FTC will still closely scrutinize review activity and pursue practices that it believes are deceptive. For more information on the FTC’s Rule on the Use of Consumer Reviews and Testimonials, see Crowell & Moring’s previous client alert, “Final Rule Announced: The FTC Strengthens Its Enforcement Capacity Against ‘Deceptive’ Reviews and Testimonials.”
The order settling the FTC’s complaint prohibits Sitejabber from making, or assisting anyone else in making, misrepresentations about any ratings, average ratings, or reviews it collects, moderates, or displays. It also requires Sitejabber to submit compliance reports and notices to the FTC and create and maintain certain records. The FTC Commissioners voted 5-0 to issue the administrative complaint and to approve the final consent order, though Commissioners Andrew Ferguson and Melissa Holyoak issued separate statements at the time of the complaint.
This consent order was published the same day that the FTC announced that its commissioners voted 5-0 to issue a complaint and proposed order against accessiBe for misrepresenting the ability of its AI-powered web accessibility tool to make any website compliant with the Web Content Accessibility Guidelines (WCAG) for people with disabilities. This is an indication of the FTC’s enhanced bipartisan scrutiny of AI-based technologies that may likely continue under the new administration.
For further information, please contact:
Holly A. Melton, Partner, Crowell & Moring
hmelton@crowell.com