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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+.