A significant number of businesses who were getting a lot of traffic and business via google have lost out – can those businesses blame and possibly sue their online marketeers ?
Online marketing is now big business – high rankings in search engines, especially google are worth a lot of money and business. Search Engine Optimisation (SEO) is the process of setting up a site and pages on it to try and rank pages, topics and keywords highly in the organic (non-paid) results.
Google began severely tightening it’s enforcement of guidelines as to acceptable practices to be indexed and rank well with google some 2 years ago, launching the so-called Panda (penalising sites with thin or scraped content) and Penguin (action against sites with unacceptable inbound links). The effects of these changes have been devastating for many website owners, many of whom relied on the services of seo specialists or marketing agencies.
The contractual and legal position
One of the most striking aspects of potential disputes between clients and seo companies is that many clients did not understand what seo historically involved and as online marketing, like many of the tech changes, has evolved so rapidly, few lawyers understood it either. This in turn meant that many seo companies did not have comprehensive service level agreements and clients didn’t challenge them on this. The bottom line was results – if the business was ranking well, the client didn’t really care how this was done and google also appeared to have a pretty laissez faire approach (or lacked the resources and/or motivation to punish non-compliance).
This has all changed rapidly and massively – a large number of sites have been penalised and to get a penalty revoked does not guarantee a return to high rankings and takes a lot of detailed work).
A number of businesses have at least considered whether they can pursue their seo company for breach of contract or even possibly negligence. This raises some interesting and difficult legal issues and we are unaware of any decided case on the issue. The issues would be :-
- absence of an express general contractual commitment – to comply with google webmaster guidelines, can compliance be implied into the contract ? A difficult issue this one – on the one hand, google’s webmaster guidelines are not new and they are relatively clear (don’t buy links, don’t try and manipulate the rankings, don’t scrape content from other sites). As against this, in order to rank well historically, almost all the sites doing well were buying links and google was not penalising them, so on a custom and practice argument about industry standards, the majority were in fact ignoring google’s guidelines to some extent or another, until google got tough.
- alleging negligence – would potentially be difficult – to what extent an online marketeer would owe a professional duty of care ti clients is an untested area, so it;s far from clear that a negligence claim would succeed.
- proving loss – another potentially difficult area – google changes it’s algorythm, based, it is believed, on hundreds of different ranking all the time, which means there are constant changes to winners and losers, so a site that was well ranked and now isn’t might have lost a lot of it;s rankings notwithstanding a penalty. The issue is especially acute given that almost all the traffic come s from being on page 1 for a search term and often the bulk of that from being in the top 4, so rankings cannot be guaranteed (in fact many of the biggest offenders marketing their seo services were those offering “guaranteed page 1 on a budget”)
- worth suing ? – as with any potential legal dispute, it’s always important to consider whether, if you succeed, either via settlement or at trial, whether the defendant has the means or willingness to pay. If you are in doubt, there is little point throwing good money after bad.
To compound all of the above, many businesses struggle to even recognise what has caused a drop in traffic and enquiries, based on not understanding how penalties may arise and why. There are 2 types of penalties – the first is algorithmic which only show as a drop in traffic at the time google announces an update, and which will only improve the next time the algorithm is updated (and based on changing what caused the algrorithmic penalty to apply), which can be as long as 6 months later. the second type of penalty is a manual penalty – this means the site has been looked at by a google employee who has manually penalised the site or pages on it. A manual penalty can also overlap with an algorithmic penalty and a site or parts of it can also be penalised by both the google panda and penguin algos. With a manual penalty, you will find an email from google explaining what type of penalty you have got in google webmaster tools, assuming you have that set up on your site. Also worth noting is that whilst manual penalties gradually reduce with time, unless the issues are resolved fully, the site may be penalised again for the same reason. Complex stuff and many clients do not even realise why they have been penalised, what kind of penalty it is, and how to fix it.
Lessons to learn
- Many businesses still use online marketeers with great success and he google changes, whilst painful and unpopular with many, are certainly sorting out the “wheat from the chaff”.
- If you are concerned about whether your online marketing is in line with google’s guidelines, even if you have not been penalised, it’s important to check regularly – just because you haven’t been penalised, you may have fallen just on then right side of the algorithm to date, but it is being tightened up all the time.
- If you are considering engaging an online marketing company, check their credentials, reputation, track record, get references and ensure the contract is specific about compliance. also, ensure they are worth suing if all goes wrong. We can help with all these aspects.
If you are considering taking action against an seo company or agency, we can help – we are unusual in that we have an on-house online marketing expert as well as a highly experienced and effective litigation team. We can help you diagnose problems, identify possible breaches of contract and/or negligence and advise on your options.
Additional reading – http://searchengineland.com/suing-your-seo-agency-168370
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