With special Thanks to Louis Barnet from Journalistic.org for his help and assistance in researching this post.
UK and US Internet Law experts divulge how much victim protection the law actually provides…
The internet has fast become the primary (if not sole) source of income for many businesses. Hence, Google rankings can make or break you; remaining on the master search-engines’ good side is essential for any small business owner’s livelihood.
As discussed in a previous blog post, here at Reboot Online, we were not only victims of a negative SEO attack on our own website, but have seen five confirmed cases of negative SEO amongst clients within the last year alone – before this we were yet to see a single one.
The trend is certainly on the rise and a recent study we carried out points out that majority of companies approached agreed in principle to carry out a negative SEO attack on their direct competitors in the hope that they will be removed from the Google listings allowing their own sites to rise up further up the pecking order. (Thanks Lord Sugar!)
This relatively new and disturbingly shady internet trend has given rise to agencies willing to perform negative SEO for clients in order to take down competitors in the google rankings – this movement takes ‘playing dirty’ to a whole new level.
But how much protection does the law provide to the victims of such attacks?
We decided to speak to two of the most respected internet law specialists in their respective countries of the UK and US. Internet law specialists Adam Taylor (UK) and Aaron Kelly (US) give their take on the past, present and future of negative SEO and its potentially serious consequences…
Regarded as one of UK’s top Internet law experts. Founder of Adlex Solicitors. An ex-partner and head of E-Commerce and Technology Group at City of London law firm Withers. Appointed to the following domain name arbitration panels: Czech Arbitration Court, WIPO Arbitration and Mediation Center’s Domain Name Panel, WIPO list of neutrals and Nominet Dispute Resolution Service (.uk).
Regarded as one of the top US internet law experts. Founder of the Kelly Warner Internet Law Firm and senior partner, Aaron Kelly contributions can be found in the Wall Street Journal as well as other media outlets such as NBC and Channel 12. Holding several positions of leadership such as Chairman of the Continuing Legal Education Committee and Vice Chairman of the Membership Committee for the Arizona Association for Justice and participates in the American Association for Justice and serves as Vice Chairman of the State Bar of Arizona’s Member Assistance Committee.
So when we talk about negative SEO, what exactly do we mean?
The obvious conclusion people come to when they hear the phrase ‘negative SEO’ is that a competitor’s website is hacked or directly compromised to lower its website rankings on Google. This is known officially as a ‘cyber-attack’ and is clearly illegal by UK law under the Computer Misuse Act 1990 insofar as it involves unauthorised access to the victim’s site; The US component to this statute is the Computer Fraud and Abuse Act 18 U.S.C. § 1030.
However, there are other methods of negative SEO which only involve external influences – i.e. these do not actually change anything on their victim’s site whatsoever. They damage rankings instead by using possible exploitations in Google’s algorithm that could have a negative effect on your site’s rankings. This practice is also commonly called “Google Bowling”.
The rationale is as such; Google has algorithms specifically designed to search out webmasters that have been overzealous in their search engine optimisation. They are continuously looking for signs that the webmaster is attempting to positively affect his/her website artificially by using tactics that are outside Google’s guidelines. In those cases, when discovered, the Google algorithms will punish the webmaster by reducing the website’s rank or even complete removal from the search results. Negative SEO works by manipulating signals which would make those algorithms falsely believe that the webmaster is trying to “game the system” with the hope that it will trigger an over optimisation penalty. The main differences between overzealous SEO and negative SEO in these cases is the intent. On the former, the intent by the webmaster is to increase his/her website ranking while in the latter, the intent is to cause damage to a competitor’s website rankings in Google’s search results and thereby cause financial loss.
It’s important to understand the actual actions that are commonly taken to carry out a typical negative SEO attack. Obviously, we do not want to get into too much detail but there are two main pillars of negative SEO:
It is known that Google considers good quality links to your site from other authoritative websites as a positive signal which will result in an increase in rank. Links are extensively covered in Google’s Guidelines and are considered within those guidelines if they are ‘Editorially given” i.e. buying links, spammy links or artificially developed links are all considered outside the guidelines. A negative SEO attack may be carried out by buying a large quantity of low quality, links directed at a competitor’s website, making it look like the webmaster is artificially trying to improve his/her ranking. In successful cases, this will result in a Google Manual or Algorithmic penalty which will require a link audit and subsequent link cleanup prior to Google forgiveness.
Content duplication – Good quality, unique content is also very important for Google as it strives to only offer the best results for the searchers. Negative SEO attacks can also abuse this commitment by duplicating the target’s website content across the web hoping to fool Google’s algorithms into thinking that the actual duplicated content is the original and hence demote the target site.
Defining “Negative SEO”
Although there is no current legal definition of Negative SEO due to the lack of any UK/US laws specifically addressing the issue, for the purpose of this article, we have defined negative SEO as:
So, is Negative SEO as described above illegal?
This question is a tricky one, as negative SEO is not a specific criminal offence as such. However, it is possible that, in future, the police may attempt to prosecute negative SEO under section 3 of the Computer Misuse Act 1990. This section, which applies to “distributed denial of service attacks”, involves any unauthorised act in relation to a computer intended to impair the operation of computers or programs or to prevent or hinder access to programs or data held in any computer. The perpetrator needn’t have any particular computer, program or data in mind. So, while far from straightforward, it could at least be argued that negative SEO involves unauthorised acts (e.g. creation of “spammy backlinks”) intended to prevent or hinder access to an important piece of data held in Google’s computers, namely the victim’s website listing in Google.
However, whether or not a prosecution for negative SEO is currently feasible in the UK, - which is a civil (not criminal) wrong causing injury to another. In those cases, the police don’t get involved and there are no fines or jail sentences. Instead it’s up to the victim to pursue compensation from the wrongdoer in the civil courts.
There are a number of different torts that may come into play, depending on the methods used by the negative SEO perpetrator. The most obvious one involves “unlawful interference”, also known as “causing loss by unlawful means”. By creating bogus back links designed to deceive Google, the wrongdoer has arguably committed an unlawful act against Google which interferes with Google’s dealings with the victim and which is intended to cause loss to the victim. That may give the victim at least a theoretical right to claim compensation.
The perpetrators may be guilty of copyright infringement if the negative SEO involves duplication of content from the victim’s website.
In the United States there are a couple of different theories of law you could proceed under. Depending on how the negative SEO was performed you could make the argument that it is “unfair competition” under the eyes of the law. The point of nearly any Negative SEO campaign is to try and harm your competitor’s site so that more people choose your website. In effect, by lowering the “value” that Google places on a website you can leapfrog over that website in the search engine results. Vast studies have been done that show the higher a website ranks, the more likely it is that it will be clicked on. So by using this “unfair competition” theory of law we would be arguing that the wrongful conduct of the perpetrator (i.e. the person performing the negative SEO) caused the value of the website to degrade in the search engine rankings and unfairly diverted customers from you to them. Unfair competition cases can usually be brought under a state law, or more commonly under the Lanham Act.
There are several causes of action you could bring under the Lanham Act, all of which would centre on the “unfair competition” that is caused by negative SEO. If the negative SEO is performed by using excessive anchor text with your company name on it, you could argue that it is trademark infringement and false designation of origin under the Lanham Act. This can be difficult, since it is not easy to tell how much the anchor text would really affect the value of the link to your website.
In addition to the above, a Lanham act cause of action would also be useful in pursuing the perpetrator through a “dilution” standpoint. This means that, pursuant to the Lanham Act, the negative SEO campaign’s unauthorized use of your brand name has actually caused the name of the brand itself to be tarnished.
Proving the effects can be easy, to a degree, if you have analytics of your website that would show the number of visitors before and after the negative SEO campaign started. Again, this would require an expert witness and can be costly. It is important to begin tracking any potential losses immediately, and screenshot your position in the search engine rankings as it drops.
For a start-up company who are subjected to a negative SEO attack before they see any profits, could they sue for loss of potential profits? Could they get damages for the time and money put into setting up their start-up? How would these damages be measured?
New businesses will most likely have new websites. These are inherently more susceptible to the negative effects of such attacks due to their lack of perceived Google Authority. Assuming they successfully sue for tort, then in principle they should be awarded damages to put them in the position they would be in had the tort not occurred. So, for example, this might include loss of potential profits, even the company had not turned a profit by then, provided it could demonstrate that there was a reasonable likelihood that profits of a certain level would have been achieved by the relevant time, were it not for the negative SEO. It’s unlikely they could recover the cost of setting up the start-up as these would have been incurred even if there had been no tort. However, the courts will take account of any penalty recovery costs incurred cleaning up the website due to the negative SEO.
There is a significant difference between the harm to a company and the harm that can actually be quantified and addressable by the Courts. With negative SEO it’s very difficult to quantify the damage done because to know that, you really have to know Google’s algorithm. Since only Google knows what that is, we’re left trying to figure out how the damage was done and how it has caused problems for the start-up. Since the company is new, there is no real baseline for how it would have done in the SERPs so we are left having to use an expert witness to determine what the damage calculation could be. This can be very expensive. So while the start-up could obtain damages, I caution clients that getting to that point can be costly in itself, and very difficult to prove unless they have hard evidence of a loss of business.
What are the challenges companies face when taking legal action against perpetrators of such attacks?
The big challenge facing victims of negative SEO is to identify the culprit and elicit proof of that person’s involvement.
If it can be shown that there is a potential claim, then it may be possible to apply to the court for a third party disclosure order to help identify the wrongdoer by asking various third parties (including Google, operators of link websites and ISPs) to provide IP addresses and other relevant information. This process has been used very successfully in the past to identify offenders with a view to taking legal action against them.
Since negative SEO implies the use of a computer network, there is normally a footprint created by the perpetrator. The process of identifying who performed the action can be done just as mentioned above, but again the process is tedious and costly. The biggest challenge lies in trying to prove monetary damages and to educate the court on how the Plaintiff has been damaged.
Could Google themselves be held responsible?
It would be very difficult to hold Google responsible for negative SEO. Google can’t be faulted or held responsible because an organisation abuses Google’s automatic algorithms, which haven’t been created with a view to cause harm.
I totally agree, Adam.
What happens if the negative SEO done to you is carried out in another country? Can you sue internationally?
If the perpetrator of the negative SEO turns out to be based abroad, then that makes legal recourse even more difficult. Depending on the exact location, and the laws which apply there, it may be possible to enforce a UK court judgment in that country or, indeed, go straight to the local courts. If court action is simply not feasible, and assuming the culprit’s guilt can be established, then it may at least be possible to convince Google to de-list the perpetrator’s own website from Google’s search results.
It is the same in the United States. While you can bring an action against the person(s) performing the negative SEO, if they are in another country it may make it difficult to enforce any judgment. However, if they have any US based assets at all (including websites) you may be able to enforce the judgment against those particular assets. If you take the time to get a judgment, it may also go a long ways in convincing search engines as to what’s going on (if you are delisted for example).
What does the future hold?
It’s pretty clear that negative SEO is becoming increasingly prevalent and is a largely growing trend that shows no sign of stopping; its cloak and dagger nature only serves to make it a low risk and relatively easy way for companies to outrank their competition. The fact that it can be done from the comfort of one’s own home, in any and every corner of the earth, means that without a third party disclosure order, it can be almost untraceable and hence notoriously difficult to prove – even though theoretically there may be a perfectly good legal cause of action.
While the law has not caught up with negative SEO and it may well take time before specific laws are passed, nonetheless there are plenty of existing kinds of legal claim which may turn out to be well suited to dealing with negative SEO disputes. The bigger problems here are likely to be the practical ones – identifying the practitioners of the dark art of negative SEO, linking those people with the unlawful acts and enforcing claims against them.”
As long as there is competition, there is always going to be that one competitor who takes the low road and tries to be successful by taking you down. Do not stoop to their level. Focus on building a brand, one that is so large that the negative SEO would barely put a dent in your profitability. Not relying solely on one website and/or channel for revenue is very important.
As far as the law goes, it has yet to catch up with technology. It is usually several years behind. At some point we may see laws that would directly impact negative SEO but it is doubtful. What we will see in the coming years is hopefully more transparency from Google and other search engines, and ways to quickly deal with unscrupulous competitors. For now, it is important to be able to monitor your websites and rankings closely.
It’s pretty evident from the professional opinions of two internet lawyers that with enough budget and know-how, even the most capable perpetrators of negative SEO can be traced and brought to justice. Previous case law such as Phipps v Britton (Origin Designs LTD) shows that it is in fact possible to track down the culprits of a negative SEO attack; in this case the claimant’s representation was able to prove that defendant had committed the crime by tracing the IP address back to him.
Gone are the days where negative SEO attacks could be carried out completely incognito – times are changing and negative SEO is becoming almost impossible to get away with if your victim has infallible determination and deep enough pockets. The best strategy is (and always has been) to instead focus all efforts on a high-quality SEO campaign, outperforming your competitors in every area including links (by earning only the highest quality ones with the help of a digital PR company), technical SEO, comprehensive content and all other areas of online marketing.