Negative SEO Lawsuits: Coming Soon
Nasir Pasha, Esq.

Negative SEO Lawsuits: Coming Soon

Negative SEO used to be a myth, but it seems that the SEO world has not only accepted it as a reality but in some ways even embraced it as a strategy. Among most SEO consultants conclude that negative SEO is just evil–but is it illegal?

Is there a law that prohibits negative SEO? Of course not. The law has never been so agile. Some may argue there should be, but for right now, any recourse requires dependence on old legal theories to new circumstances. The same occurred with copyright laws as it applied to sharing digital music on Napster.

Whether you are trying to prevent legal liability in your ruthless negative SEO tactics or you want to pursue claims against a competitor who just dropped your rankings, you are travelling in untested territory. Tread forward accordingly.

What is Negative SEO?

This is not an SEO blog nor am I an SEO expert, but like all legal matters, you need to know what facts you are dealing with.

The general purpose of negative SEO is to lower another site’s (other than yours) search engine results page (“SERP”) ranking. The known methods focus mostly on “link based” negative SEO, but there are “non-link based” or “linkless based” negative SEO tactics as well.

Link Based SEO

Link based SEO exploits algorithms by search engines like Google that penalize sites that utilize so-called black hat tactics to generate back links to the site. You can find a number of anecdotal case studies that proves the existence of competitors using such methods to attack another competitor.

The most compelling proof comes from Google itself with its “Disavow Tool.” Google says, “if you believe your site’s ranking is being harmed by low-quality links you do not control, you can ask Google not to take them into account when assessing your site. You should still make every effort to clean up unnatural links pointing to your site. Simply disavowing them isn’t enough.” Though this tool seems helpful, there is not much out there that really confirm it works.

Some SEO consultants report having to disavow links on a regular basis. Besides the damages caused by a lower ranked SERP, there is calculable out-of-pocket costs associated with the time to disavow. What is worse is that unless you know what to look for, a website owner is likely completely unaware of links that need disavowing.

Non-Link Based SEO

One of the linkless tactics include cloning duplicate content. Search engines do not like duplicate content. A negative SEO tactic includes the posting of a target website’s duplicate content on other sites that either have more credibility or in some way negatively effects the credibility of the original content.

Some of the other non-link based negative SEO methods include are plainly unscrupulous. They include hacking sites, misrepresenting identities to get positive backlinks removed,  and blacklisting IP addresses or domains through spam or other online scripts.

  • Must-Reads if You Are Thinking About Buying a Business

    September 18, 2014

    If you are thinking about buying a business, you must have lots of questions. Of course, you should get some help with this process -- from your banker, your attorney, your accountant, and possibly a …

  • Can Employers Still Use Credit History in Hiring?

    June 18, 2015

    Job seekers hate credit checks. They see it as invasive data collection with only remote relevance to job performance. It has also been argued that credit checks unfairly burden those who have or have had …

  • What To Do When Your Amazon Account Gets Suspended [e278]

    September 08, 2016

    Nasir and Matt discuss why Amazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan. Transcript: NASIR: Welcome to Legally Sound Smart Business. My name is …

  • Should You Finance the Sale of Your Business?

    September 30, 2014

    Truthfully, most sellers don’t want to take back paper. An all-cash deal often looks like the easiest and cleanest way to get on to the next venture, much preferable to waiting for another 5 to …

  • 6 Habits of Business Owners That Will Get Them Sued

    February 10, 2015

    There are some clients that I know, no matter what advice we give, no matter what we do, they are bound to enter into the courtroom. It is as if they are destined without any …

  • How Much is My Business Worth?

    September 25, 2014

    You have spent a lot of time building your business, but about three to five years ago you began to think about selling, so you have been taking all the necessary steps to position it …

  • Nine Legal Strategies to Protect Your Brand

    June 25, 2015

    Perhaps you’re never dreamed of a Google or Facebook-sized business empire – multiple products generating multiple streams of income that seem to semi-magically renew themselves. Something a bit more modest might be fine as well. Whatever …

  • Changes Afoot in Texas Noncompete Law?

    November 27, 2014

    The Texas Court of Appeals 2013 decision in Nacogdoches Heart Clinic, P.A. v. Pokala raises some puzzling questions about the direction of noncompete law in Texas. It makes sense from a public policy perspective, but …

  • What to do When a Customer Accuses an Employee of Theft

    July 02, 2015

    This is one of those managerial headaches that may make life on a desert island look attractive. You don’t want to lose the customer or expose your business to accusations of wrongdoing, but you also …

  • How to Protect Trade Secrets

    January 26, 2016

    Coca-Cola’s recipe for its soda is supposed to be one of the best kept secrets ever. The original recipe is said to be kept in a vault in the company’s Atlanta home where visitors to …

There have been other reports of website owners receiving extortion emails threatening an negative SEO attack unless the website owner ponies up some money.

The Legal Options

Negative SEO present legal obstacles for those seeking a legal remedy. The first problem is that very rarely does a victim of negative SEO actually know who is the perpetrator. Even if somehow an IP address was obtained, there would be no telling whether that address could traceback to an actual responsible party.

Putting aside the unknown defendant enigma for a moment, under what legal theory or “cause of action” would you have against a competitor who utilized a negative SEO attack against you?

For some negative SEO methods, there may be clear recourse. For example, if someone were to falsely represent to a high ranking site that you desire to remove a backlink, you would have substantial and clear claims against that actor. If you needed to remove duplicate content, you would not even have to know the perpetrator, but rather a DMCA takedown request would be sufficient.

Intentional Interference of Economic Advantage

What about the more typical link based negative SEO tactics? Is it possible to stop someone from linking to your website? Should you be able to stop it?

At the time of publishing, there has been no known legal theory yet accepted to pursue claims against negative SEO link building; however, it has been suggested that a tort-based cause of action may have traction in certain jurisdictions.

Intentional  interference of an economic advantage (or an analogous intentional tort) available in many state jurisdictions creates a real, but untested, legal recourse for victims of such tactics. In general, the elements of intentional interference of an economic advantage are:  (i) an economic relationship between the plaintiff (the website) and some third party (Google) containing the probability of future economic benefit to the plaintiff (Website), (ii) knowledge by the defendant (Negative SEO’er) of the existence of the relationship, (iii) intentional acts on the part of the defendant designed to disrupt the relationship, (iv) actual disruption of the relationship, and (v) damages to the plaintiff proximately caused by the acts of the defendant.

In such a case, the plaintiff would have to argue that the website owner and Google had an economic relationship that would have resulted in an economic benefit. It would also need to be shown that the Negative SEO’er knew of this Google and Website owner relationship and that the Negative SEO’er engaged in wrongful conduct to disrupt the relationship in such a way that harmed the website owner.

There are many ways a Negative SEO’er can put a wrench into this legal theory including busting up the notion there is some kind of economic relationship between Google and website that happens to be listed in its search engine directory.

The most vulnerable part of an intentional interference of economic advantage claim is the “wrongful act” part. Usually the conduct has to fall outside what would be considered fair competition. Though the courts seem to be unclear as to whether wrongful conduct must violate a statute or regulation or perhaps violate a standard of trade or profession. Is farming backlinks to a third party site a “wrongful act” as it applies to this cause of action? The case would be won or lost in this regard.

Some jurisdictions like California allow you to name “Doe” defendants, i.e. defendants that you may not know the identity. The advantage is that you may be able to conduct subpoena requests to help track down possible defendants. If you can find some traces to a domestic entity or person, you have a viable defendant.

Defamation

There has been some legal commentary suggesting the a defamation claim may be used to combat negative SEO. Defamation is not really a good fit because there is really no statement being made nor a statement of fact that is not true. Though negative SEO can cause tremendous damage, courts would have a difficult time stretching this common law cause of action. A backlink does not claim affiliation with the linked site nor does the backlink really in itself make any statement at all.

Read More