United States: California Regulates Online Bots

Last Updated: November 12 2018
Article by Andrew Hoffman and Adam Connolly

Citing the proliferation of online bots used to deceive consumers and influence voters, the California legislature recently passed the nation's first law directly regulating online bots. Enacted on September 28, 2018, SB 1001 prohibits use of online bots in a deceptive or misleading manner for certain commercial or political purposes. The law will become operative on July 1, 2019 and could be emulated by legislators in other jurisdictions who have voiced concerns about online bots in the wake of the 2016 election.

Overview

The law defines a "bot" as "an automated online account where all or substantially all of the actions or posts of that account are not the result of a person."

The law makes it unlawful "to communicate or interact with another person in California online, with the intent to mislead the other person about its artificial identity for the purpose of knowingly deceiving the person about the content of the communication" if the communications aims to:

  • "incentivize a purchase or sale of goods or services in a commercial transaction" or
  • "influence a vote in an election."

While the law does not require disclosure that a bot is not human, an organization that uses a bot can avoid liability under the law altogether if it does and is the disclosure is "clear, conspicuous, and reasonably designed to inform persons with whom the bot communicates or interacts that it is a bot."

Giving this disclosure, however, is not a safe harbor from liability under other laws, as SB 1001 provides that it is "cumulative with any other duties or obligation imposed by any other law." For example, an organization that gives the disclosure may escape liability under the anti-bot law, but still face liability under California's Unfair Competition Law (UCL) if the conduct nonetheless constitutes an unlawful, fraudulent or unfair business practice.

The law does not specify its own internal enforcement mechanism, but California's Attorney General (and potentially, California district attorneys and local prosecutors) can seek civil penalties of up to $2,500 per violation of the law under the UCL. In addition, private plaintiffs may attempt to use violations of the law as a predicate for private lawsuits authorized under the UCL for unlawful, fraudulent or unfair business practices.

Our Take

SB 1001 will give organizations that use bots in a wide variety of commercial and sociopolitical contexts a strong incentive to be transparent that the bots are not human.

Even if a bot's primary purpose is not to sell a product or service or influence a voter, organizations will still need to consider whether the bot's secondary effects might trigger the law. For instance, a bot primarily designed for customer service that even gently encourages up-sales or subscription renewals could be covered by the law. Similarly, activity that may influence a vote in an election is not limited to direct advocacy for a candidate or ballot measure. For example, the Russians charged by the Department of Justice with attempting to influence the 2016 U.S election used bots to post on social media not only about candidates but also about race, immigration and other controversial social issues – an event cited by SB 1001's sponsors as part of the impetus for the law. Thus, organizations will need to consider whether their bot activity could have even indirect influence on purchase or voting decisions, and weigh the risk of alleged SB 1001 violations against any drawbacks of disclosing the bot's artificial identity.

The bar to establishing a violation may seem high given that the organization must not only have "intent to mislead" the individual about the bot's "artificial identity" but also do so for the purpose of "knowingly deceiving" the individual about the nature of the content. However, the ability of bots to persuasively impersonate humans is now well-established and precisely why they have become so popular. As a result, establishing intent to impersonate a human may be as simple as providing evidence that a company intentionally used a bot that reasonably could be mistaken for a human without disclosing that it wasn't human. Thus, for many organizations using bots the question will become whether to rely on the position that bot communications are not knowingly deceptive or simply disclose that the bot is not human.

Next Steps

Organizations should first review the types of communications that their bot makes – or is likely to make – and assess the risk of the bot delivering misleading or deceptive communications, especially in contexts where they could be characterized as influential (even indirectly) on a decision to vote or purchase a product or service. Organizations should consider implementing technical and organizational controls (e.g., algorithmic controls, testing procedures, periodic formal reviews and risk assessments) to prevent their bots from making such communications. Taking these steps, and documenting them, can be useful in defending against allegations of knowing deception, and becomes more essential if the organization elects not to disclose that the bot is not human. Finally, organizations should consider giving a clear and conspicuous notice disclosing the bot's artificial identity where feasible, as it is the most straightforward way to avoid liability under the law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions