Opinew’s service makes it easier for you to utilise reviews posted on other platforms. Reuse of material posted on another platform of course brings with it certain legal considerations, relating to personal data, copyright and other rights. Within this article we provide answers to some of the more commonly asked questions relating to this.
Background to the use of other platforms’ reviews
Reuse of platform information has already been examined and commented on in a number of instances. Examples of this include:
Example 1
Example 2
Other non-review past legal cases
The most notable legal cases against companies scraping publicly available data have been between LinkedIn vs HiQ
Both cases concluded in favour of the scrapers i.e. It is legal to scrape publicly available data. Be it pricing information, LinkedIn profiles or in our case — reviews.
Linkedin vs HiQ
Linkedin vs HiQ 2
How does Opinew’s service fit with data protection laws ?
In the UK, similar to other countries, where one processes personal data, one must have a lawful basis/proper legal basis to do so. Opinew’s service is a tool which, for users, facilitates their importation of reviews from third party platforms or directly from reviewers. However, Opinew do not actually hold or process the reviews themselves. The service is in effect a tool which users use for particular purposes, similar to word processing software or such like.
Do reviews constitute personal data ?
Review information also may not actually constitute or contain any personal data. Personal data is information from which a living individual can be identified, either directly, or in conjunction with other information held or available. As reviews are often given under made up usernames, or simply just first names, it may not be possible to identify individuals from them. In some (albeit limited) cases, full names may be made available, but in a non-location specific way. One may argue that if the name is common, a specific person can’t be identified. The instances where both a name and location are made available, or other information is included, from which an individual can be identified are rare. Opinew does not display any personal data upon its widgets. The personal data involved with respect to the reviews, and the operation of Opinew’s service, may therefore be quite minimal, and in many instances non-existent.
Opinew’s documentation states that they use legitimate interests as a basis for any personal
data processing under UK law – tell me more
On the legitimate interests basis, the UK regulator of data protection matters, the ICO, states:
“Legitimate interests is the most flexible lawful basis for processing, but you cannot assume it will always be the most appropriate.
It is likely to be most appropriate where you use people’s data in ways they would reasonably expect and which have a minimal privacy impact, or where there is a compelling justification for the processing.
If you choose to rely on legitimate interests, you are taking on extra responsibility for
considering and protecting people’s rights and interests.
There are three elements to the legitimate interests basis. It helps to think of this as a three-part test. You need to:
- identify a legitimate interest;
- show that the processing is necessary to achieve it; and
- balance it against the individual’s interests, rights and freedoms.
The legitimate interests can be your own interests or the interests of third parties. They can include commercial interests, individual interests or broader societal benefits.
The processing must be necessary. If you can reasonably achieve the same result in another less intrusive way, legitimate interests will not apply.
You must balance your interests against the individual’s. If they would not reasonably expect the processing, or if it would cause unjustified harm, their interests are likely to override your legitimate interests. Keep a record of your legitimate interests assessment (LIA) to help you demonstrate compliance if required.You must include details of your legitimate interests in your privacy information.”
If a person places a review upon a platform, or provides a review, they may be said to have a reasonable expectation that review will be published in relation to the relevant product. The review information will either be publicly available already, or it is known to the reviewer that it will be published. As such, one might argue that the use or reuse of the review is within the boundaries of reasonable expectation, and has minimal privacy impact upon the reviewer.
As regards the three part test mentioned by the ICO, the legitimate interests applicable would be those of Opinew, in providing their service, and those of the platform user, in publicising the attributes of their products via ensuring visibility and dissemniation of reviews.
Opinew’s processing does not go further than what is necessary, as no other processing of review information takes place, and it cannot be carried out in a less intrusive way.
As regards the balancing of interests, as noted above the review information is already publicly available, and it is being used only for the purpose it was originally made available, by the seller of the product to which it relates.
What if I receive a complaint as regards use of a review ?
Facilities are made available whereby reviews can be removed or redacted from Opinew’s service. Opinew have not received any compaints so far as regards use of reviews, so we expect the likelihood of complaints arising subsequently to be low.
Are there any issues arising from copyright, database rights and contract law ?
Opinew’s service allows for the extraction and importation of review content from third party platforms, into user online shopfronts. Third party platforms have terms of use that apply to the platforms. Whilst the extraction and importation of reviews from third party platforms may not expressly be permitted under their terms of use, Opinew and its users have never received any complaints, Also, such extraction and reuse is commonplace across a number of different service providers in the field.
This is the same with copyright – whilst reviews do attract copyright, reuse is commonplace, and no complaints have been received. Also, the owner of any copyright may be (depending on the terms of use relating to the relevant platform), the reviewer themselves, or the third party platform. If a platform had not acquired rights in or to reviews to an extent sufficient to allow them to take action in place of the author of the review under copyright law, then there would be difficulties in the platform a proper basis
for any complaint. That would leave any course of action sitting with the reviewer themselves (who were happy to make the review publicly available in the first place). Some countries also provide for various “fair use” rights relating to copyright works, and the reuse of reviews may in some circumstances fall within the scope of fair use.
We have also been asked whether database rights apply. Whilst it may be technically arguable that the database rights may theoretically subsist in a platform’s catalogue of reviews as a database, there would need to be a substantial investment in obtaining, verifying or presenting the contents of the database for database rights to exist. As reviews are submitted voluntarily by users without prompting by platforms, and are not verified, this criteria may not be fulfilled, and database rights may not be present.
What do I need to think about with respect to advertising standards ?
If stores “pick and choose” the reviews that they like best, and want to bring across to their sites, this may give an unrepresentative image of the product concerned. Stores should exercise care to ensure that they are not just “picking and choosing” the best reviews. Also, stores should not knowingly use manufactured or fake reviews. These are standards that apply whether users use Opinew’s services, or not.
How might someone look to find me liable as a user ?
From a purely technical standpoint, remedies would generally be (i) damages, (ii) an accounting of profits, and (iii) preventative orders granted against their use of the service vis a vis particular platforms or in respect of particular reviews. In respect of data protection matters, the UK regulator (the ICO) has the ability to levy fines where applicable law has been breached.
However:
- Reviews placed upon third party sites are publicly available, as such that may lessen risks arising from reuse of those reviews – people care less about reuse of what is already publicly
available.
- Formal legal action brings with it expense, which has to be met before success. This may act as a disincentive to persons bringing action. Further, often costs in legal action cannot be fully recovered. Again this may be a disincentive to action.
- In an action for damages the aggrieved party would need to quantify loss to make out that claim. As platforms and reviewers do not engage in active licensing of review content, as that content is publicly available, there may be challenges here. Irrespective, though, some assistance would be required with respect to quantification, which would mean that the aggrieved party would have to incur expense prior to any recovery.