COPYRIGHT, TRADE MARKS
Internet
ARTICLE:
By Nicola McCormick, solicitor, Michael Simkins LLP

Search advertising is presently estimated to account for around 40% of US/UK online marketing spend and the total spend will almost certainly continue to increase. The purchase of key words to trigger banner ads or sponsored listings is hugely important- although crawler listings cannot be bought and rankings cannot be guaranteed.  The public understand this and largely trust organic search results to point them to the most relevant content-rich sites. For this reason a good search result ranking is a hugely significant means of driving traffic to a website.   No matter what ingenious new marketing techniques are developed, online ranking manipulation will remain popular, so in what way does UK law apply to search engine optimisation (“SEO”)? Solicitor Nicola McCormick explains  

More than just Meta-tagging
A couple of years ago much was written about the legality of using a competitor’s trade marks in meta-tagging as a form of SEO.  The reported UK and US cases did not give a definitive statement as to when such use was permissible; cases rarely do.  However, the broad principle was that such use was permitted when it was justified.  US cases in particular were more inclined to make a finding of justification if the competitor’s trade mark also appeared legitimately and visibly in the body copy of the alleged infringer’s website.  However, by the time this principle was emerging Google was on its rise to dominance.  Google’s PageRank search algorithm decreased the reliance on meta-tagging as a means of assessing search relevance and introduced a large number of other factors. Evidentially it became increasingly difficult to argue that a competitor’s trade mark in meta-tagging was likely to be a significant factor in even returning the alleged infringers page in response to a search let alone in causing confusion for the purpose of trade mark infringement or passing off. Naturally, as soon as a given factor, be it tagging or linking, is known to be factored into search engines’ algorithms the optimisation experts start looking for ways to manipulate their websites to emphasise that factor and boost their rankings. 

Black Hat and White Hat SEO
It should be emphasised that optimisation is not a bad thing per se.  If you have a number of companies it is to be expected that you will provide genuine links between their respective websites which is likely to enhance each website’s rankings.  If you participate in a wiki or blog community in your specialist field it is natural to want to include a link on such sites to your own company’s website (if permitted).  Depending upon the provenance of the site hosting a link such links are by varying degrees likely to enhance your site’s rankings.  Maximising the ranking-effect of genuinely relevant online activity is the domain of the SEO “White-Hatters” and where it serves to ensure that content rich sites are returned high in a search ranking no complaint may be made.  However, on myriad sites across the web companies are complaining about sites that have used various means designed to fool a search crawler into believing that an irrelevant or content-poor site is of greater relevance to a given search term than is genuinely the case and have thereby bumped genuinely relevant sites down in the rankings. Some of the better known forms of ‘Black Hat’ search engine optimisation (or spamming) include:  the use of link farms; mouse-activated re-directs; hidden table cells stuffed with key words; links from contrived websites or wikis; invisible text and duplicate websites. None of these techniques need involve the use of intellectual property belonging to another.

The bulk of online disputes, and in particular those relating to optimisation techniques, have involved arguments as to intellectual property, passing off or defamation.  If no intellectual property rights have been infringed is the law able to help those aggrieved by another’s use of misleading SEO? 

Claims other than Intellectual Property Infringement 
During the 19th century English law might have stepped in readily to prevent someone committing a wrong that ‘hindered another in his business’.  In the UK free market economics put an end to such a broad principle.  Simply making it difficult for a competitor to promote his business by adopting a sharp, but legitimate, practice will not give rise to a legal claim.  The courts will not prevent intentional damage to another person’s business unless the acts committed in pursuit of that damage are in themselves unlawful. Assuming no IP rights infringement or defamation a legitimate, commercial website owner may fill his site with whatever content he pleases either in its coding, visible or invisible text, no element of unlawfulness arises. It should be noted that if any element of unlawfulness in the means of advancing a website up the search engine rankings could be established then, not only would it be difficult (in the face of constantly changing search engines algorithms) to demonstrate that the specific, unlawful optimisation technique led to the advancement in the rankings but it would be extremely difficult to show that an advancement in the crawler rankings alone by a competitor led to a loss to the complainant of business.  

Dispute Resolution Techniques
Any business which suspects that another site has advanced itself in the crawler rankings by virtue of search engine spamming might seek resolution by approaching Google directly (whilst there are a number of other well-known search engines Google accounts for about half of all UK searches and most of the large search engines share content with Google).  Google has a record of taking steps to ban sites using certain optimisation techniques from its index, an action which would lead to the delisting of those websites from the majority of searches.  More openly it invites complainants to submit details of sharp optimisation practices taking place and seeks to update its search algorithm to factor out the effect of such techniques.  Google sets out procedures for notification of such matters on its website but whatever action it is persuaded to take there is usually a significant delay for the complainant between starting the Google notification process and seeing a change in search results.  Whilst the existing law may not directly help in fighting some online battles, legal dispute resolution techniques may nevertheless be employed to good effect.  Most companies, indeed most lawyers, simply do not understand the rules and penalties applicable to online marketing strategies and this can be exploited by those that do understand them.  One option for a complainant which may, in the right circumstances, have force, is to write to the owner of the artificially boosted website in terms similar to a legal ‘Letter Before Action’ but which might be termed a ‘Letter Before Notification’. The letter should detail the spamming practices that have been identified by the complainant and threaten a notification to Google and all other major search engines unless such practices are stopped.  There is a risk for any site whose activities are reported to Google that they will be blacklisted entirely following a notification that they have undertaken search engine spamming.  Even when they subsequently dismantle any architecture complained of it may take some time (even weeks) for them to be re-included by Google.  Many website owners, even those employing spamming techniques, may not be aware of the consequences of doing so (often they have engaged a rogue SEO company who may not have explained what they have done let alone how it may be viewed by Google and other search engines).  The threat of a period of search invisibility means lost sales for a transactional site and possible disputes with advertisers for many others and may well have sufficient power to persuade the competitor voluntarily to change their ‘optimisation’ strategies. It is not suggested that you set your IT team analysing all those who outrank you in your key searches but if a competitor appears to be stealing a march on you or you have been bumped to page 2 by an irrelevant-looking site it might well be worth checking for obvious signs of Black Hat activity and putting pen to paper.

This Article is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. The Michael Simkins LLP website is at http://www.simkins.co.uk/default.aspx

See also GEICO v Googlehttp://www.mondaq.com/article.asp?articleid=37262&lastestnews=1