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August 6, 2013

Can you Sue Your SEO for Black Hat Tactics? It’s a Gray Area

In the Penguin 2.0 penalty box and looking for someone to blame?  Your SEO company is a likely — and perhaps reasonable — target.  But successfully suing your provider won’t be easy, lawyers and SEO experts say.

The question, “Can I sue my SEO company?” came from someone who read ‘Don’t Plant Weeds in Your Garden:  5 Ways to Stop Killing your Website Rankings, which detailed the plight of two business owners who had spent tens of thousands of dollars on links that derailed their rankings when Google changed its algorithm in the spring.

The simple answer is: Yes, you can sue your SEO provider. The harsher reality:  Don’t count on a successful outcome.

No Pudding, No Proof

Although you may know in your heart — and from your financial headaches — that your SEO provider is at fault for the losses you’ve suffered in the wake of Penguin 2.0, proving it in court won’t be easy.

Penguin 2.0 is not a law, so your SEO provider did nothing illegal if he failed to heed Google’s warnings about spamming and bad link practices.  You would have to prove that your SEO provider violated some duty to you — and such duties would had to have been specified in writing, says Thomas Simeone, a partner at Simeone Miller, a malpractice and personal injury firm in Washington DC.

“If you simply hired your SEO provider without specifying what they could and could not do, there is likely no legal recourse,” says Simeone.

Even if the SEO provider violated the terms of a written contract, you could have trouble proving damages — convincing a court that a loss in revenue was directly caused by a drop in Google rankings, Simeone says.

Brian Coughlin, a SEO analyst with OpticsPlanet, agrees, in blunter terms:

“If you hire a shady company, you’re asking for trouble.  Proving that the company you hired purposely tried to screw you over is nearly impossible,” says Coughlin, whose dad and brother are lawyers.  “I can say pretty definitively that you’ll have almost no success suing an SEO company for bad link practices.”

A Bad Paint Job is Still a Paint Job

The problem, Coughlin says, is proving malice.  The SEO Company could claim ignorance — or incompetence — if they used black hat tactics that didn’t work in your favor when Penguin 2.0 rolled out.  He compares hiring an SEO contractor to hiring a painter.

“If you hire me to paint your house and I paint every wall but paint it poorly, you still have to pay me.  If it’s in the contract that I have to paint the walls a certain way and up to a certain quality, that’s a different story.  If a company hires an SEO company to optimize their site and improve rankings using ‘white hat’ techniques, they’d better define ‘white hat’ explicitly and say that you don’t want them to build links to improve rankings but rather work with your web designers on site architecture and content strategies.”

If the SEO company builds bad links instead, then you have a case.

Suing OK in the U.K.?

You may also have a stronger case if you live somewhere other than the U.S.  So check your local laws.

Geoff Parker, managing director at Blue Ocean Search in the United Kingdom, says he believes more companies would successfully sue their SEO providers if it weren’t so costly and expensive.  He says Google’s webmaster guidelines clearly define best practices and ethical standards and that any company that continued to build bad links despite penalty warnings violated the “reasonable skill and care” standard that all U.K. companies are required to uphold.

Contract or no contract, Parker says, companies could sue under statutory law.  Most don’t, though, because the process is unwieldy.  “Many small businesses don’t have the time, resources or financial backing to take on the bigger SEO companies so don’t bother, so the SEO companies get away with unlawful practices.”

Fool Me Once…

The easiest way to recover from a SEO firm’s harmful practices may be to switch to another provider.  Protect yourself from continued harm by carefully selecting your new SEO Company and insist on a written agreement that includes these key contract elements:

1.  Clearly stated prohibited activities

If you don’t want your SEO Company to purchase links, for example, put it in writing.  If you want to keep keyword density below one percent on your website, put that in the contract.

“Be as specific as possible,” says Simeone, who is also a part-time law professor.  “Not only does this provide you with a legal cause of action against the SEO provider if they do resort to those practices, but it acts as a good screening mechanism when finding a company. Simply put, if an SEO provider refuses to sign, you may have dodged a bullet.”

2.  Fraud claim

Include in the contract language that prohibited practices are “material” to you and that you are entering the contract based on your reliance upon those assurances.

This helps you set up a fraud claim in addition to a breach of contract claim, which can provide for more damages if you decide to sue your SEO Company, Simeone says.

3.  Liquid damages claim

Seek a liquid damages clause.  This specifies the amount of damages to be paid to you if the SEO engages in any of the prohibited practices.  This means you would get paid even if you can’t prove actual damages in court — if you can’t prove that going from page one on Google to page 17 harmed your sales.  A clause such as this might specify that the SEO company would have to return all of the money you spent plus x amount of dollars.

Simeone says, “this may be a lot for a SEO provider to accept, but it is worth seeking and very helpful if obtained.”

4.  Choice of forum clause

You and your SEO provider may live far away from each other.  Don’t let your SEO provider choose the jurisdiction in which he can sue or be sued.  It may be hundreds or thousands of miles away from you.

Seek a jurisdiction convenient to you or, if you can’t agree on a location, remove this clause from the contract.

If a dispute arises, you can file suit in a convenient location without a clause saying that you can’t, Simeone says.

6.  Audit rights

Don’t wait years — or until you’re penalized — to find out if your SEO company is acting in your best interest.  Check up on your SEO provider periodically.

“Include rights that allow the small business to monitor and audit the practices used by the provider on the small business’s account,” says Joy Butler, who practices business, copyright, trademark and entertainment law in Washington DC.

7.  No damage limit

If a contract says you can only sue your SEO provider for $10,000, you can’t ask for more even if your damages add up to millions.  Don’t get trapped by a damages clause favorable to your SEO provider.

Butler, the author of ‘The Cyber Citizen’s Guide Through the Legal Jungle:  Internet Law for Your Professional Online Presence,’ advises the exclusion of damages from any maximum cap that appears in a limitation on liability clause.

Take control

Your website and all of your activities on the Internet — from links to tweets to guest posts — are your responsibility.  Choose your inbound marketing professionals carefully and keep in touch with them regularly to make certain that all of them are acting in your company’s best interests.  And, if you prefer to do your own digital marketing, consult a knowledgeable marketing strategist before employing outdated or harmful practices that could damage your rankings or reputation.

Article by Katherine Kotaw. KOTAW’S Law of content marketing is “passion” and the firm belief that content marketing is a partnership with their clients. To learn more about your business passion, you can circle Katherine on Google+.

39 Responses to “Can you Sue Your SEO for Black Hat Tactics? It’s a Gray Area

    avatar Samex4rill says:

    It’s kinda funny when u don’t know the particular type of service to be rendered to you.

    I also think it’s essential if you dig deeply to your traffic providers traffic source.

    avatar Katherine Kotaw says:

    You’re always at a disadvantage when you hire someone for a skill you don’t understand. I dread car repairs, for example, because I feel at a disadvantage when I talk to a mechanic. But it’s fairly easy to find knowledgeable friends and to get several estimates before agreeing to repairs. And, once my car is in the shop, I check on the progress of the repairs — I don’t leave my car there for six months to a year, hoping that the mechanic knows what he’s doing. Another way to protect yourself from bad SEO tactics, in addition to seeking a clearly-defined contract, is to familiarize yourself with SEO enough to ask intelligent questions and to closely monitor the efforts of your SEO provider.

    These are some really impressive and unique techniques to perform quality SEO while staying safe from the adverse effects that it can cause as a result of spamming. So following a proper prohibited manner to perform quality SEO is a really good option.

    Thank you, Executive Programs, for commenting. SEO, performed properly, is very valuable. Business owners should practice caution when hiring SEO providers as they would when employing any contractors.

    avatar Shenzhen Lead Opto-Technology Co. Ltd says:

    I was thinking.

    SEO ranking criteria are now more open the more harsh.

    avatar Ledstar Lighting Co., Ltd says:

    Worth sharing!

    avatar Katherine Kotaw says:

    Thank you for commenting. And please do share the article! The more informed business owners are about SEO, the better it will be for businesses who want to rank well on Google and for SEO companies that provide optimization services that do not include questionable tactics.

    avatar Go Designing says:

    I don’t think it can work, there is more need to hire a professional, experienced and having a great profile SEO company to get fast benefits. Because sue is not easy thing to do especially when it is related to cyber field.

    avatar Katherine Kotaw says:

    It certainly won’t be easy. But a Michigan law firm is suing its SEO provider under the RICO act, the racketeering law originally designed to combat organized crime.

    avatar JeffMcPherson says:

    Great article, Katherine Kotaw! To my knowledge, no one is really talking publicly about whether or not you can sue your SEO provider, so this article is not only a wealth of knowledge, but also a breath of fresh air! I hope it sparks a big conversation and makes people hiring SEO companies take everything you outlined here to heart, and I hope it makes SEO companies that are using black hat techniques think twice. Maybe it’s difficult to sue them now, but knowledge always creates power, and I think this article will give people hiring SEO companies a lot of leverage they may not have otherwise had before. Thank you for that!

    avatar Katherine Kotaw says:

    Thanks, Jeff. You’re absolutely right about knowledge creating power. And there’s a case in Michigan that I thought was off-the-wall, but a lawyer tells me it could make serious waves in the SEO industry. I’ll write more about this when I have confirmation and input from others but, if successful, the suit means SEO companies (and other companies too) could face both criminal and civil penalties if they knowingly indulged in practices they knew wouldn’t work.

    avatar Jenn Davis says:

    I like the UK’s “reasonable skill and care ” standard. Why don’t we have that here in the US?! I think you should definitely be able to sue your SEO provider for using black hat techniques that destroy your rankings, lose you money and make your business look bad. But like so much evil in the world, it seems black hat SEO providers can get away with destroying lives punishment free. I am grateful for this article, though, because it outlines what to do to make suing possible. Who’d have thunk you’d have to go through all this trouble to make suing possible? But now that I know, I will be armed and ready for next time…

    avatar Katherine Kotaw says:

    Glad to be able to make you “armed and ready,” Jenn. And I agree that the UK standard makes good common sense.

    avatar Alyson says:

    I like the distinction that Penguin 2.0 isn’t a law, so you can’t sue your SEO provider for breaking the rules. However, when all is said and done, that seems really unfair! You are supposedly paying your SEO company to help your business succeed, not get blasted to the last page of search results on Google.

    avatar Katherine Kotaw says:

    Yes you are. In fairness to SEO companies, though, some are directed to get page one rankings no matter what. If a business owner gives such directives, he or she is as much at fault as the SEO company. That’s why it’s critical to get your expectations in writing.

    avatar Joanne Lane says:

    How do you go about finding a SEO company that will follow the rules of Penguin 2.0? How do you really know what your SEO company is doing and whether it is black hat or white hat?

    avatar Katherine Kotaw says:

    That’s a good question, Joanne. At KOTAW, we believe that SEO must be coordinated with other marketing efforts, such as blogs and social media. Organic SEO is smart SEO. The best SEO company will be one that embraces content marketing and social media and optimizes your site and content to achieve the best possible results. Protect yourself by learning as much as you can about SEO and ask potential SEO providers a lot of questions.

    avatar Wes Peters says:

    I agree completely that your website and all your activity on the internet are your responsibility. So don’t tweet naked pictures of yourself, post drunken rants on FB, or forego to properly research and monitor your SEO company’s activities.

    avatar Katherine Kotaw says:

    You made me laugh, Wes, so thank you for that! And you made an excellent point in the process. We are responsible for what happens in our names or our company’s names so due diligence demands that we make all of our contractors, including SEO companies, accountable.

    Very important article. Extremely important for businesses, but also important for those claiming SEO expertise that such claims carry with them responsibilties to be truly knowledgeable and appropriately trained!

    avatar Katherine Kotaw says:

    You’re right, Susan. I think the SEO industry attracted a lot of people with a cowboy mentality who found it exciting to outmaneuver Google and SEO competitors with risky tactics. These tactics worked for a while, but the Wild Wild West days of the Internet days are over. SEO providers need to start acting like other businesses — or get out of Dodge.

    Are black hat SEO providers mobsters? And could they go to jail?

    A Michigan law firm is filing charges against its SEO company under the RICO act, which was originally intended to prosecute members of the Mafia. Companies found guilty under RICO face up to 20 years in jail and fines of up to $25,000 for each count of fraud PLUS triple the amount of civil damages.

    If the law firm wins its case, “It could set a precedent for turning every fraud case against a company into a RICO case against not only the company itself, but also the officers and directors,” says Thomas Simeone, a lawyer quoted for this article who answered a follow-up question I had for him after this piece was published.
    The case could get tossed — or settled “But, the potential definitely exists for a very serious precedent for all companies, not just SEO companies,” Simeone said.

    avatar Lily says:

    Saw the follow-up Mafia bit on Twitter and had to check it out. Wow. That would be a mighty big precedent! Color me intrigued 🙂

    avatar Katherine Kotaw says:

    Glad you visited the article, Lily. I’m intrigued, too. If you know any SEO providers, please reach out to them and ask them to comment. Would sure like to know how people in the SEO industry feel about the new lawsuit.

    avatar Hank Graham says:

    Prosecuting SEO fraud as harshly as we prosecute mobsters takes balls. Can’t wait to see how this turns out. I know a certain SEO crook I wouldn’t mind sharing a jail cell with a mobster…

    avatar Katherine Kotaw says:

    Oh, Hank, don’t taunt me this way! Do you have any details to share about your experience — no need to name names, of course — but it sounds as if you’re sitting on a fascinating story.

    avatar W. Kim says:

    It may be difficult to sue your SEO provider. but this article will surely make it easier. Thanks for a thoroughly researched article and insightful read.

    avatar Katherine Kotaw says:

    Thank you for your comments, W Kim. My aim is to enlighten. Business owners, including SEO providers, should know both their rights and responsibilities.

    avatar Dave Gilmore says:

    Like the easy-to-understand “a bad paint job is still a paint job.” If you pay someone to do something and they do it badly, you still have to pay them, which bites! That means you have to do your research and pick the painter and SEO provider that best suits your needs. Or, as is pointed out in this great article, specify how your want your house painted or your SEO done in a contract. That way if the paint or SEO job isn’t up to par, you aren’t so stuck, have options, and aren’t out all your money.

    avatar Katherine Kotaw says:

    Yes, you’re right, Dave. And it’s easier to correct a bad paint job than to fix poor rankings or a Google penalty. Thanks for commenting.

    There are many reasons for not suing an SEO company. Specially the SEO agencies which many businesses hire through marketplaces like Elance, oDesk, Guru, etc. on the basis of “lower rates” are difficult to sue as Employers already know that they are making an error in selecting these low rate SEO contractors who do not have much experience and can’t provide the results they want. Just for an example, how can anyone think that an SEO Expert will provide top rankings working at $1 per hour? Yet, employers search for “lowest rate” contractors and hope for the top rankings.

    avatar Katherine Kotaw says:

    Thank you for commenting, SEO India. I agree that people who shop for SEO providers based on cheap costs are doing their companies a disservice. But some companies spend $100 an hour to achieve poor results. Business owners need to educate themselves before approaching an SEO provider and use this knowledge to ask a potential provider tough questions about how rankings will be achieved, how long it will take and their own role in achieving desired rankings. If you hand over your money and the reins to your SEO company, prepare to be taken for a very bumpy ride.

    Buyer beware! In an unregulated industry like search marketing, it’s a bit like he wild west! There are way too many cowboys out there selling snake oil and desperate clients are falling for their smooth talk, cheap packages and false promises. Clients need to get more clued up, ask questions and read their contracts carefully before clicking “YES I have read the terms and conditions” to avoid getting stung!

    avatar Katherine Kotaw says:

    Great advice! If a business owner stops to count up the number of slots (after the paid ones) available for a Page One Google ranking — and looks at the total number of sites not on page one — he should easily grasp the basic math and know achieving a page ranking will not come easily. And not at all with snake oil tactics. Until the Google sheriffs run all the despicable cowboys out of town, business owners need to protect themselves and JUST SAY NO to anything that sounds too good to be true.

    avatar Smitha32 says:

    I loved your post.Much thanks again. eddgbaddcd

    avatar Susan Ross says:

    Is there a way to tell who performed black hat practices or even when? I just found out my SEO company is using referer spam but I know they are going to deny it. I don’t plan to try to sue them but perhaps get some sort of refund. The only agreement about white vs black hat was verbal. So I would like to be able to say “hey, I know you did this, give me a refund!”

    avatar James Bond says:

    A great article about SEO white, black & gray hat techniques.

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