Negative Online Bot Reviews Push on the Edges of Defamation Law

A California hospice company and litigation over a swell of negative online reviews mark a new front on the intersection of First Amendment law and emerging technology.

“HORRIBLE, EMOTIONLESS AND CRUEL!!” one reviewer said of Los Angeles-based Agape Hospice & Palliative Care, a subsidiary of Ensign Group Inc. “Will leave you hanging without medication you need.”

The reviews spurred the company to sue in California state court, saying its Google rating has been dragged down by these and many more similarly negative reviews, but that they largely don’t represent feedback from the small facility’s patients or their family members.

Instead, the company says it’s a coordinated attack from a competitor, who has hired bots to hurt it.

The “bot accounts,” according to the complaint filed in California Superior Court, Los Angeles County, are likely from a service that a competitor hired to damage Agape’s reputation. Agape’s attorney, William DeClercq, told Bloomberg Law that he used the word in a “non-technical sense” and it could also apply to humans posting fake, formulaic, repetitive reviews.

A handful of cases have considered similar claims against multiple falsely identified accounts, but none appear to have dealt specifically with bots.

The strength of Agape’s claim lies in the assertion falsely embedded within the online reviews that they are written by customers, UCLA Law Professor Eugene Volokh said. Otherwise the reviews—as subjective opinions— wouldn’t be considered defamatory.

“It’s talked about as ‘sock puppetry,’” Volokh said. “It looks like it’s multiple, but really it’s just one entity that has an economic axe to grind.”

The case infuses traditional business defamation litigation with new questions: Who’s to blame if artificial intelligence is behind bot-generated content? What happens if the reviews are posted overseas, as this complaint alleges? And what are the consequences if a company misidentifies a customer with real grievances as a trash-talking bot?

“The rise of the internet, and then social media, and now AI creates more opportunities for people to defame and be defamed,” said Lyrissa Lidsky, a professor at the University of Florida’s Levin College of Law. “It has put a strain on defamation law, in part because of the sheer quantity of opportunities for defamers to reach mass audiences.”

Connecting the Dots

DeClercq filed Agape’s first bots complaint against Google in 2023, when a wave of one-star reviews was driving down business for the company. But that case was dismissed shortly after because the behavior subsided, DeClercq said. He suspects Google took a closer look at the reviews and stepped up its moderation practices after receiving legal notice.

Then, the bots apparently evolved, publishing 2- and 3-star reviews to get around Google’s filters and prompting the 2024 complaint.

“We’re not really looking to break ground or create new case law,” DeClercq said. “I’m really just trying to solve a problem for a client. Sometime you have to get a little creative.”

Google and Agape didn’t immediately respond to a request for comment.

Anonymous internet defamation lawsuits require lawyers to name John Does as defendants so they can secure identifying information during discovery. Erik Syverson, an early architect of this type of litigation, said it’s essentially “old fashioned detective work.”

“It’s kind of like what you see on movies or TV shows, when they’re conducting a manhunt and putting pins on a map,” Syverson said.

Privacy concerns are the “obvious hurdle” in a claim like Agape’s. Some protective internet companies file objections and litigate on behalf of the user defendants after receiving a subpoena for their data, Syverson said. Sometimes, social media companies entering the case is enough to intimidate a plaintiff into backing down.

The bot allegations add “another link in the chain,” Syverson said.

“You’re going to have to connect the dots from the bots to the person instructing the bots,” he said. “That’ll be a whole additional layer of subpoenas, investigation, evidence gathering.”

Other Concerns

The case isn’t likely to run into the same obstacles as defamation suits against AI chatbots, a new, muddy area of law complicated in part because it’s difficult to interpret an algorithm’s intent.

“Chances are, if there was a bot behind this, there was a human actor guiding the actions of the bot,” Lidsky said. “Otherwise, why would a bot suddenly just start kicking out negative reviews of this particular company?”

Still, DeClercq’s case is complicated by the allegations that some posts likely come from overseas, which McClerq alleges based on IP addresses he found the first time he filed the suit.

“To serve a subpoena overseas is almost impossible,” said Barry McDonald, a professor at Pepperdine University’s Caruso School of Law. “The more global this problem becomes, I think we are going to need global bodies, instead of just US courts or courts of another country, like the World Trade Organization.”

DeClerq is certain that customers didn’t post the reviews in the case because their usernames don’t align with the companies’ clients. Some of the posts are “outright ridiculous"—like one that claims a security guard was rude. Agape operates in clients’ homes; there is no security guard, DeClerq said.

Litigation is just one strategy to counter bot reviews. Business owners can also respond to online posts and explain that they are fraudulent, McDonald says. The risk is that if a business frames a legitimate review as a fake, bot-generated one, it can be held liable under California’s strong unfair competition laws for false advertising.

“This is just part of the Wild West that’s been created by the internet and digital tech, that is capable of tremendous good but also tremendous harm if it’s misused,” McDonald said.

The case is Agape Hospice & Palliative Care LLC v. Does 1 through 1000, Cal. Super. Ct., No. 24STCV16528, 7/2/24.