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Can you sue your SEO agency?

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Posted by Iain Colville on 22 December 2015

Iain Colville - Intellectual Property Disputes Lawyer
Iain Colville Partner

The short answer is yes, but it’s not easy.

The vast majority of businesses rely on their website to bring in new business, sell products or enhance their reputation. Increasing targeted traffic to their website enables their business to grow.

In increase their digital presence many businesses use digital agencies or freelance consultants to help increase website traffic, particularly using search engine optimisation (SEO) to increase their rankings on Google which naturally attracts more traffic to a website.

However, sadly many businesses also fall foul of unscrupulous tactics employed by some less than ethical SEO agencies. In these instances how can you protect yourself and seek to recoup your financial loss.

Digital marketing, in particular SEO involves a specialist set of skills; it combines technical skills, research, on page factors, content creation, off page factors, promotion and  link building to increase Google ranking positions for certain keywords and drive traffic to a website.

Google has always taken a dim view on any website it deems to be trying to cheat and ignore their webmaster guidelines. However in recent years they have tightened things further with the release of several key updates to their algorithm; Panda, which looks to penalise websites with what Google classes as “thin content” and Penguin which looks to penalise sites with spammy link profiles, where businesses or their agencies have used paid link services, too much anchor text or other tactics to increase the volume of incoming links to their site.

The impact of these two updates have been disastrous to some businesses who found themselves removed from the Google index all together which had a substantial impact to their business, in some cases putting them out of business altogether. Many of these businesses relied and trusted the knowledge and skills of an SEO or digital agency.

The contract

The majority of disputes relating to search engine optimisation come from a lack of understanding from businesses on the SEO process. It is often seen as a dark art rather than a marketing service. As with many digital things, the industry moves quickly and unless you’re dealing with it day to day it can be hard to keep up, for businesses buying and selling SEO services and the solicitors who potentially review or define the contracts in place.

In practice, it’s an area where businesses have taken a more lacksadaisy approach. In many cases there is no contract or service level agreement in place. When websites are ranking and the traffic is growing it appears business owners turned a blind eye to how it is achieved. This can be a very costly mistake if their website is penalised by Google.

It may be too late to see if you can take legal action against your SEO if you haven’t looked at or have an agreement in place.

Your contract needs to specifically include the tactics that are not acceptable under the service agreement, these should be anything considered “black hat” including:

  • Paid links, link wheels, blog networks and Google bombing.
  • Parasite hosting, pingback spamming and spam blogs or Splogs.
  • Scrapped, spun or copied content.
  • Keyword stuffing and hidden text.
  • Cloaking and redirects.

Your legal redress

There are already cases in the USA of businesses successfully suing their SEO providers.

Having fallen foul of the Google penalty many businesses look to recoup some of their financial loss from their SEO agency, under claims for breach of contract or professional negligence. Both businesses and SEO’s should be aware of the legal consequences should an issue arise:

No contract or service level agreement

Google is very clear about its guidelines, “do not try to manipulate search engine results in unfair ways”, however, is compliance with the guidelines legally enforceable by the SEO agency’s client? In order to increase rankings many SEOs will stray over into what are considered to be “grey hat” techniques which as the name suggests are somewhere between the black hat and white hat world. They are carefully chosen approaches that do not strictly adhere to the Google guidelines, historically without these tactics sites have struggled to rank or been continually beaten by websites using spammy tactics. However, with the new dawn of Penguin and Panda this is no longer the case. Your contract should specify the tactics not to be used by your SEO.

In the absence of express contractual terms to this effect it may be arguable that the court should write in or imply this obligation. However, there would be more chance that the court would do so in today’s culture of enforcement. The court may not be prepared to write missing obligations into agreements when this behaviour was commonplace.

Is it negligence?

It may be possible to claim for negligence if you do not have a contract, but there are criteria.  First you need to show that the SEO professional owed you a duty of care, which should not be difficult if they are doing paid work.  Second, did they breach that duty by acting without reasonable skill and care?  This is the difficult area because if they acted in accordance with what were once industry standards, by using their best efforts to boost your ranking through commonly deployed tactics, then they are unlikely to be found to have breached that duty. You need to show they overstepped the line and that will depend on what a reasonably competent SEO professional should do: always a fast moving target.

Financial loss

It is possibly more straightforward to show a financial loss but it needs to be a loss which you can prove came from the SEO’s breach of duty. This may be possible if a business’s website has a manual penalty which has been flagged by Google via the search console. It is then possible to show that webspam was a contributing factor.  However, algorithmic penalties are more difficult to detect and prove where the blame lies. Coupled with this is Google’s continuing changes and fine tuning to their algorithm, which currently stands at over 200 factors, so rankings can never be guaranteed and may fluctuate significantly over the contract period.  As with all legal disputes it is important to consider whether the benefits of taking legal action outweigh the risks and cost.

Although not a dark art, SEO is still a specialised area and it can be difficult to ascertain the cause of the drop in ranking or traffic to a website. There could be a multitude of factors where in many instances there is no blame attributable to the SEO. It can take months, even years to fully recover from a Google penalty.  

The majority of businesses use SEO freelancers and agencies without any problems. If you are considering contracting with an agency to look after your SEO check their experience and ensure your contract with the agency requires them to be compliant with the Google Webmaster Guidelines. Google offers advice on the questions to ask an SEO.

If you hired an SEO without specifying what they are (and are not) expected to do, there may be no legal recourse that will help you recover any losses. It is always sensible to spend a little on getting your contract right with expert legal help. 

About the author

Iain is an experienced dispute resolution lawyer, who specialises in disputes involving innovation and technology.

Iain Colville

Iain is an experienced dispute resolution lawyer, who specialises in disputes involving innovation and technology.

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