Criticism of companies via social media and digital platforms: an alternative route to justice for consumers?

The instantaneous sharing of information and opinions offered by digital technology is undoubtedly changing the face of the consumer world. Consumers can now more easily share their customer experiences with each other, which tends to facilitate informed consumer choices. This ability to communicate their opinions online is a component protected by their freedom of expression. However, some companies are seeking to restrict this expression, invoking their right to safeguard their commercial reputation. Defamation suits brought against consumers who have used digital platforms to criticize their products or services have increased in recent years.

Faced with this confrontation between two fundamental rights - the consumer's freedom of expression, on the one hand, and the company's right to reputation, on the other - the judge must strive to strike the right balance. However, the defamation remedy used by companies seems ill-suited to the current context of increased use of social media and digital platforms as a form of expression. The consumer's freedom of expression occupies a marginal place in the application of the legal criteria applicable to defamation. Damages, representing exorbitant sums for consumers, are also awarded to companies, without clear proof of the harm suffered. The responsibility of the company itself for the deterioration of its reputation, resulting for example from poor customer service or the poor quality of the goods offered, is conspicuous by its absence from the debate.

The courts are also reluctant to consider online reviews as serving the public interest. Yet focus group participants recognize that their main motivation for posting a review online is to warn other consumers, and to encourage companies to abandon their bad practices. Moreover, the use of digital platforms sometimes constitutes an alternative route to justice for consumers who are unfamiliar with the protections and remedies available under consumer law, or who encounter recurring problems of access to justice.

The terms of use of digital platforms offer little protection for users. Platforms' disclaimers of liability for published content place the entire burden of responsibility on the consumer. The lack of guidelines for monitoring content and removing publications is a powerful tool for censoring consumers. The participants we met admit that they don't always take the trouble to read these conditions of use, which are often very complex, and that they have little understanding of the legal principles governing defamation actions.

The aim of this report is to inform consumers about the risks associated with online reviews, and to better define the boundaries within which they can express their opinions about a company. It proposes a more harmonious reconciliation between the consumer's freedom of expression, society's interest in exchanging experiences in consumer law, and the company's right to preserve the reputation it deserves. Finally, it is important to emphasize the importance of informing the public of their rights and remedies under consumer law, and of the alternative dispute resolution methods available in the event of a defamation suit by a company.