Search engine marketing or search engine optimisation is becoming an important part of any business marketing strategy. Many internet users, consumers rarely go directly to a website. Instead, they let search engines such as Google or Yahoo do the work of finding a website.
Search engine optimisation
Search engines are the modern-day equivalent of sign posts and the Yellow Pages. A business that does not use search engine optimisation (SEO) techniques risks making it more difficult for consumers to discover their products and more likely they will be led to a competitor. On the other hand, if a business chooses to search engine optimise its online presence, it can expect a noticeable increase in its revenues.
However, companies and even SEO consultants can experience problems if they design a website without considering the many legal issues which can arise. This article gives an overview of what these legal issues are. Each individual issue will then be discussed in following articles.
SEO and contract law
The first legal issue concerns the contractual relationship between a business and an SEO consultant. Disputes often arise because the parties to a contract fail to conclude a written agreement setting out in clear terms, the precise duties of each party or, for example, the division of profits.
The category into which an SEO contract falls is currently unclear. Depending on how the contract is categorised can have an effect on the SEO consultant’s obligations.
Some consider the contract to be one for the sale of goods or finished product. This means an SEO consultant would be under an obligation to actually bring about an agreed result.
Others consider the contract to be one for the supply of goods and services. Under such contracts SEO consultants are only obliged to use reasonable endeavours to bring about a result; in other words they are not obliged to achieve a result, but simply to try to achieve it.
In relation to optimisation services an SEO consultant is under a duty to exercise reasonable care and skill to avoid using so-called “black hat” methods such as cloaking, link farming and doorway pages. Moreover, an SEO consultant is required to abide by the rules of the relevant search engine operator.
Liability is another important area which should be expressly regulated in a written SEO contract. The agreement should reflect the precise terms as to who should be liable for various legal infringements and include regulation of third party liability.
SEO and trademark law
The use of third-party trade names in hidden content such as metadata, which is still contained on a visible part of a webpage, also carries legal risks for users of SEO techniques. The case law views the use of third-party trade names with aim of achieving the broadest readership possible for one’s own website as a trademark infringement.
SEO and competition law
Competition law is a further area which can bring legal problems in relation to SEO. The intentional use of so-called back hat methods is considered to be unfair within the meaning of § 5 of the German Unfair Competition Act. This entitles competitors to send warning letters to bring the competition infringement to an end.
SEO and copyright law
HTML code and data underlying search engine optimisation can also be the topic of a legal infringement. The case law has occasionally taken the view that HTML search engine optimisation code is a creation and as such, can be afforded protection under copyright law. If an SEO consultant uses even an extract of optimisation code belonging to another, even if it is accidental, the copyright holder would be entitled to seek an injunction and to claim compensation under copyright law.
Conclusion
There are various legal considerations as far as search engine optimisation is concerned. Seeking early legal advice from a trained SEO lawyer can save all parties concerned the costly warning letters and legal disputes.
You can find a German version of a handbook produced by the law firm WILDE BEUGER SOLMECKE on “SEO Law” here. Or you can call us for initial advice on SEO on 0221 / 951 563 0 (Beratung bundesweit)
