The Legal Implications of Employee Reviews

Doug Downs (00:06):

There's a digital article on Sprout Social. What is employee advocacy and does it really work? In the article, the benefits of the program are made clear, increased brand awareness for marketing, wider personal network for sales, positive workplace environment for recruiting and HR, subject matter expertise for industry thought leadership, all great arguments. The article goes on to explain how to do it, incentivize participation, provide training on how to do it, set goals and KPIs, recognize top contributors. And just for the record, I agree with all of these, but wait a minute. What if I told you that kind of advocacy could be interpreted by government agencies as misleading or a fake review? In Canada, in January, 2024, the government competition bureau warned businesses to monitor online reviews and testimonials posted by employees because biased reviews, and I'm not really sure you could have a non-biased review. It's kind of the nature of them are a real problem. One company in Montreal was fined over $300,000 for employee reviews deemed misleading today, odd stories and strategies turning your employees into your brand champions at your own risk.

(01:56):

My name is Doug Downs. A quick note off the top of the podcast, I want to thank Luthando Madhlopa. Luthando, I'm probably not pronouncing your last name just right, but I want to thank you anyway. Luthando shared some really kind words about this podcast on our LinkedIn channel says it's one of her favorites. Luthando lives in Johannesburg, South Africa says Stories and Strategies is a regular part of our 5:00 AM club activities. Good early morning Luthando and thank you for that.

(02:28):

My guests this week are Gavin Tighe and Stephen Thiele both joining today from Toronto in Canada. Gentlemen, how are you?

Gavin Tighe (02:37):

We are snowed in. You guys in Alberta can have your weather back anytime you want it.

Doug Downs (02:43):

We send the clippers your way. Stephen, it's snowing. You're in the same building pretty much, aren't you?

Stephen Thiele (02:48):

It's coming down and it's pretty thick and I can probably see about, oh, I don't know, maybe a couple of hundred yards out the window. That's how much snow we're getting.

Doug Downs (02:56):

 And how was the traffic this morning in the city that thinks it's Canada's capital?

Stephen Thiele (03:00):

It was actually pretty good. It only took me 25 minutes to get into work, which takes me double the time, but given the snow, we're all going to be cutting out early here, Doug. Well,

Gavin Tighe (03:11):

Don't tell the mayor that, Stephen. They'll make sure to put construction crews on every street. They haven't put them on already, which I think is about three. But anyways, that's not a story

Stephen Thiele (03:22):

You've heard about the three year construction project, the

Gavin Tighe (03:25):

Eternal Construction Project. This is kind of like that cathedral in Barcelona, that's a Toronto Roads.

Doug Downs (03:32):

Gavin, you're a senior partner with Gardiner Roberts based in Canada and chair of its litigation and dispute resolution group. You've been repeatedly cited, which is not necessarily a good term for a lawyer. It

Gavin Tighe (03:44):

The time. No, it's not. Don't stop talking about my parking tickets. You've

Doug Downs (03:47):

Been cited as one of Canada's leading lawyers by legal rating groups. Better not be any employees and of Gardiner Roberts in there. But anyway, we'll get to that as well as in

Gavin Tighe (03:58):

The, this is my, but that's another story

Doug Downs (04:00):

Or Earned Media. And Stephen, you're the director of legal research at Gardner Roberts and work closely with the litigation and dispute resolution group lawyers to provide advice. You're also an author and co-author of a number of legal articles that cover and discuss topics related to legal research and other high profile legal issues. And you're currently a trustee for the Law Foundation of Ontario.

Stephen Thiele (04:24):

Yes, and I'm the guy who's responsible as to why Gavin gets cited all the time. Yeah,

Gavin Tighe (04:28):

He double parks the car gets me those citations.

Doug Downs (04:32):

Well, and the two of you host a wonderful podcast called Beneath the Law, where you have conversations just like the kind of conversation we're going to have here right now. I think let's first establish what I think is the obvious fake or deliberately misleading testimonials or reviews by anyone, for anyone about anything are wrong and it's a problem and it needs to be addressed. But here's the issue that we're talking about in this episode Within Canada, we have a law, the Competition Act. It's administered and enforced by the Competition Bureau, nice and simple. And according to the competition bureau, material connections such as employment, relationship between reviewers and the businesses they are reviewing could result in material penalties, money. What's going on?

Stephen Thiele (05:36):

Well, Doug, you mentioned we've got the Competition Bureau. There are competition authorities around the world. Every country will have some form of whether it's the Competition bureau as it's named here or some other kind of trade commission or something else,

Gavin Tighe (05:56):

Antitrust.

Stephen Thiele (05:57):

Antitrust. What's going on is these organizations are basically wanting to crack down on fake reviews or reviews that promote the product or services of a business that are being supported by basically reviews from employees

Gavin Tighe (06:21):

Well and both positively and negatively. Right? I mean, I think just picking up on your point, Doug, you said it's wrong. Sure, it's wrong. Just like false advertising is wrong, lying is wrong. Telling falsehoods about anything is generally speaking wrong in most moral codes for sure. And here what we see is, look, we all do it. We live in an age where one of the first things we look at is reviews, and we read the reviews and it's funny that you read the reviews and I am guilty of this is the next person. If you're checking out a hotel or you're looking at some restaurant, you read the reviews. Why? Because it's something you think it's more credible to read a review from what you think is a disinterested party telling you, oh, this is the most wonderful thing since literally sliced bread. Or Oh, this place is awful, or rats running around, whatever it might be. It seems to have more credibility because of the source. And my mother had a great phrase that she used to say, self praise is no recommendation. So when you read somebody or an institution talking about themselves like a hotel, oh, we're the most wonderful hotel that ever was. Yeah, of course. What else are you going to say? But when you read a review, all of a sudden you believe it, but maybe you should ask yourself, is it true?

Doug Downs (07:42):

Understood. So let's say I work for a large company. My company does a great job with internal communications, and one day I see someone ranting on X Twitter or Facebook about something and stating multiple mistruths. So as the employee, I take it upon myself to respond and say, well actually that's not what the company is doing or that's not accurate. The widgets we make are tremendous and they work extremely well and I leave it at that by what the competition bureau is doing. That's wrong. They're saying, I've done the wrong thing here, and if I don't say I'm an employee of this company, my company is potentially exposed to a financial penalty for being non-compliant with that law.

Stephen Thiele (08:33):

Yeah, I think you want to distinguish that particular situation, right? That's responding to, let's say someone's left a Google review about the product of the company and the response from somebody within the company, and I would highly recommend that the person who is responding if they are going to respond says that they're with the company that's distinguishable from the situation that the competition bureau is trying to get at, which is basically you make a widget and then you say to your employees, by the way, can you please leave a review on our widgets or a rating, right? Or a rating

Doug Downs (09:16):

Leave a rating, leave a five star

Stephen Thiele (09:18):

Rating. Exactly. Right. It's like, please leave a five star rating on your podcast, right? We're producing a podcast, please leave a five star rating. That's what the competition bureau is trying to get at that those ratings are being fed by the company's employees.

Gavin Tighe (09:34):

Is that called astroturfing in the common parlance where you're just sort of puffing up your caliber with what are phony endorsements but are actually paid advertising dressed up as endorsements?

Doug Downs (09:50):

Gavin, I call it internal communications, that's getting your employees to be your champions. It's rule one in internal comms.

Gavin Tighe (10:00):

Well, it certainly, I think that that's not a problem as long as I come back to my point initially is like what do people give credibility in reviews? If you think it's a third party who is giving an honest opinion uninfluenced and you read it, it has a certain level of credibility. If it's the general manager of the company talking about, oh, my company is wonderful and I know because my boss told me to write this review that it's wonderful, all of a sudden that review doesn't have a heck of a lot of credibility. So I think the source actually matters quite a bit in reviews, doesn't it?

Doug Downs (10:37):

Is this just a Canadian thing? Is it only Canada where this is being looked at or is this under review in the US, UK, Australia, where's it happening?

Gavin Tighe (10:48):

Well, there's lots of litigation about this. I mean, I know for a fact that I've been involved in some lawsuits where review sites in Canada, there's one called HomeStars, which deals with rating of various contractors who do work on people's homes and stuff like that. And then you can rate your contractor and a lot of contractors get bad reviews. And what are those reviews? Oftentimes reviews are not only, we talked about positive ones that are fake, but we can also talk about negative ones that are kind of revenge review in the sense that I don't want to pay my bill. So listen buddy, either you give me a 50% discount on my toilet installation or I'm going to write this review about you or give me a discount or back off on trying to collect your account, or I will not take this review down. If you leave me alone, I'll take the review down. So there's a lot of what I'll call review extortion going on out there in terms of this issue and that has seen its way into the courts in terms of libel and slander and defamation actions as well, not just regulatory proceedings like the Competition Bureau

Stephen Thiele (12:00):

And just Doug, more directly to your point in terms of are other countries looking at this? Yes. The Federal Trade Commission actually just had some hearings in mid-February of 2024, so pretty recently from this recording where they are now going to be implementing rules similar to what the competition bureau here in Canada has already done in terms of taking certain businesses through the Competition Bureau process and actually fine them going back as far back as 2015. Bell Canada, our largest, one of our largest telecom providers was fined because their employees were basically leaving five star ratings on their products and their app, their My Bell app I think it was called, and they were fined because the employees actually weren't even using the product. And so the competition bureau investigated that. So you have the Federal Trade Commission now in the US looking to put in rules.

(13:12):

You have actually some legislation, my understanding before the UK Parliament that is also going to basically add a provision in that legislation banning these fake kind of reviews. And in terms of litigation, Gavin speaks to one aspect of litigation, which is the whole defamation litigation where somebody leaves a negative review as a form of extortion, let's say, and it's very difficult to get those reviews off of some of these sites, but you have Amazon and some other businesses have actually taken action against what are called basically fake review brokers who will basically get hired by a company and then basically, I guess they hire consumers or fake consumers to leave reviews to basically pump up the companies and pump up the products. And so Amazon, I agree with Gavin, that's what I look at. If I'm buying a product on Amazon, wow, that's got a hundred reviews compared to no reviews for another product.

Gavin Tighe (14:32):

Wasn't there some statistic, Stephen, I think it was Australia that said that almost 40% of the reviews you read are phony, that they're actually fluffing, I'll use that word, fluffing the product and that they're sort of internally generated reviews up to, I think it was 37 or percent were fake, which when you think about it, is pretty terrifying because like I said, I'm sitting there as a normal consumer. I read the review. I'm assuming it's from a disinterested third party who's giving their honest opinion. Meanwhile, it's just fake advertising and it is truly fake advertising. At least when you watch a Super Bowl commercial, it's a commercial. This one, you don't know it's a commercial at all.

Stephen Thiele (15:19):

Yeah. So Doug, I have this question for you. I mean, you've been at podcasts for a long time. I have it. I've got a YouTube channel. Every once in a while I will get a direct solicitation from somebody who says, Hey, I've seen your YouTube channel, but you know what? It's not quite optimized as well as it could be the, and I'm here to help you out, the SEOs, right,

Doug Downs (15:43):

And the game that they're playing there some, let me be real careful, I've got you guys in my corner. If there's litigation here, the game they're playing is they're not necessarily optimizing your SEO. There are bots that can then turn around and follow you, so sure your followers will go up, but their empty follows because that's their whole system. So if I run internal comms for my company, it sounds like I actually have an obligation here to make my employees aware that any review they provide in print or online, digital or video, they need to declare that they're an employee of the company that basically also forbids any star rating. You can't as an employee, leave a five star rating because there's no opportunity for you to disclose that you're an employee of the company,

Stephen Thiele (16:42):

Right? Where you have no ability to make the comment that you're an employee and of the company. That's right. That's what competition bureau is. Basically, the competition bureau in Canada is recommending to businesses that yes, the employee not leave a five star review,

Gavin Tighe (17:01):

But it's the blurring, if you will, to my mind as we're having this conversation, the blurring between information and advertising, and I mean, we've all seen infomercials, for example, on television station, usually on the hours that are not prime time, but they're paid and you'll see that disclaimer at the end of it says, these are the opinions of the advertiser, not necessarily of the station, but look, you flip that channel on. It's pretty hard to distinguish between what is programming of a media lead and what is an infomercial, which is a commercial with a bunch of softball questions or what have you, by a paid host to a given guest who is in fact the owner of the time. I mean, isn't that really the issue is what is actual information and what is advertising and where does that line blur? I'm thinking of some of the content that is on some of the news channels, and I am very sure, and I don't know this for a fact, but I am quite sure that for example, one could persuade through a check or otherwise media outlet to, for example, have interviews at your restaurant that day or whatever.

(18:19):

I mean, there's got to be a reason why they go to certain establishments as opposed to others, and this blurring I've of advertising and actual news information, I think leaks over into this area just the same way, and that's why people have to be very careful and critical about what they're reading.

Doug Downs (18:38):

What about influencers? I mean, social media influencers, any other form of influencer, do they have the legal obligation to say, and by the way, this was a paid for announcement? Well,

Gavin Tighe (18:49):

Legal to who, I mean, this is the other quandary we have is we're talking about a competition bureau, which is a federal organization here in Canada, trying to be the traffic cop, if you will, of what is a completely international and unregulated wild west type situation. I mean, we talk about buying reviews. I mean, can't you buy followers? Isn't there like follower farms so you can go, I've got a million followers. Sure, if you've got enough money, I can get as many followers as I want. Well, they'll set up a bot farm in Bangladesh or Malaysia or China and how do you police that and these influencers or what have you. They sell that influence. It's a commoditized issue. I don't know whether there's some ability to determine whether or not their followers are real. I don't know if there's an ability of anybody who is going to pay these people to sort of get a rating on their followers.

Doug Downs (19:51):

There's also, there's native advertising. If I watched Survivor, it wouldn't surprise me to see the host Jeff Probes drink from a can of Coke that's native. It just appears he doesn't say anything about it. He just drinks a can of Coke. Isn't

Gavin Tighe (20:04):

It happening in movies too? Isn't that been a long story, that there's lots of money changing hands about getting your product into the

Doug Downs (20:11):

Limelight? Exactly. Native advertising, dude, they have an obligation to put a little scroll up that says the Can of Coke was sponsored by Coca-Cola, right? Because there suddenly there's a business arrangement. Let me read you something from Forbes, a Forbes article that was written in 2022 by Tom Gibby, quote, employee advocacy, which is at the heart of this from a comm standpoint, employee advocacy is essentially the practice of having employees promote your business and share messages that talk up the business to their social base and peer group. This is a must to drastically amplify your coverage. What has Mr. Gibby left out there?

Gavin Tighe (20:59):

The disclaimer as to the source now, but let me, Mr. Gibby, speaking from a perspective of business, I completely get it because if your competition is doing that and you're not and you're suffering as a result, if you're the two star rating and they're the five star with 5,000 reviews and their business has taken off and yours is in the doldrums, you can certainly see why. If that's the game being played, you got to play it.

Doug Downs (21:32):

Thank you both. This is eyeopening, I think, and a head scratcher for me. It's certainly a turnaround, but I appreciate the time both of you have today.

Gavin Tighe (21:45):

Thanks, Doug. That's

Doug Downs (21:47):

Why we dig into

Gavin Tighe (21:47):

The law and we get beneath it,

Doug Downs (21:49):

Beneath it, beneath the law, and I'd better disclose this. My company produces Beneath the law, but the two of you, your own podcast is Beneath the Law. There's a link to it in the show notes, and this is exactly the kind of discussion you dig into to get beneath it in every episode.

Gavin Tighe (22:07):

Thanks very much, Doug. Appreciate that. Thanks, Doug, and appreciate your honesty. In terms of your relationship, very important. Honesty and integrity are the hallmarks of stories and strategies I can assure

Doug Downs (22:19):

You. Sounds like the financial penalties would hit you, and I don't want that. If you'd like to send a message to my guest, Gavin Tighe and Stephen Thiele, we've got their contact information in the show notes, check out the podcast. It's excellent. Gavin and Stephen have amazing conversations like this on Beneath the Law. Stories and Strategies as a co-production of JGR Communications and Stories and Strategies, podcasts. If you like this episode, please leave a rating as long as you're not an employee of the company. Those mean the world to us, and we read reviews on future episodes. We're also on YouTube and YouTube music, full audio episodes, and we publish short video segments as well. Lastly, do us a favour, as always, forward this episode to one friend. Thanks for listening.