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The guys end the week by explaining what negative SEO is and what legal remedies are available to victims of it.

Full Podcast Transcript

NASIR: All right. This is… what are we doing today? Yes, a business law podcast where we cover business in the news and add our legal twist. My name today is Nasir Pasha.

MATT: And, as always, I’m Matt Staub.

NASIR: As always… Well, I change my name once in a while.

MATT: Pasir Nasha.

NASIR: That was horrible. Horrible joke. Let me just write that down.

MATT: It wasn’t a joke.

NASIR: I keep track of all your bad jokes, by the way. We’ve had 181 episodes or so and we’re at 296 bad jokes.

MATT: Hey, that’s not bad, that’s like 1 ½ per episode. That’s pretty good – good average.

NASIR: Yeah, good average.

MATT: Speaking of numbers, we have SEO talk today – or negative SEO talk.

NASIR: Well, why is that speaking of numbers?

MATT: I don’t know. SEO, numbers

NASIR: 297.

MATT: I should have said “speaking of analytics.”

NASIR: You should have said, “Speaking of negative SEO, uh, negative SEO.”

MATT: Good lead-in.

NASIR: I think it’s funny that us lawyers are covering this issue because I think it’s such a subtle issue that most people aren’t even aware of. First of all, let’s break down what negative SEO is. In order to understand what negative SEO is, you have to know what SEO is.
SEO is search engine optimization and, by the way, if I’m wrong and you SEO experts want to correct me, send me the email later, okay? I’m sure I’m not perfect on this. Anyway, SEO is search engine optimization. That’s just basically the process of trying to optimize your website and its affiliated backlinks, et cetera, in order to prop up the ranking of the search engine results for a particular keyword. And so, just as an example, if you’re a plumber and you have your business in San Diego, when you search “San Diego plumbing,” you’re going to want your business to come up as high as possible. Obviously, it gets a little more complicated than that because that’s a very competitive keyword. But, when it gets to other stuff, then you’re actually able to get number one spots sometimes. And so, negative SEO is, of course, the complete opposite. It’s what you do to your competitors that if you have ABC Plumbing San Diego that happens to be on the number one spot on Google when you search “San Diego plumbing,” how can you as a competitor get them to rank lower with efforts that you’re doing? It’s a little controversial, I would say.

MATT: Yeah, I mean, a little bit. This is the whole thing, and you wrote a great post on drawing the line between what’s legal and what’s ethical. I mean, I think it’s pretty clear on the ethics side of it. I don’t think any of this is ethical but, I mean, it’s also a business tactic.

NASIR: We tend to get SEO consulting calls and we have clients in the industry, we hire people in the industry. So, every time I run across anybody that seems to know about this stuff, I ask them about this and they all seem to agree that negative SEO does exist because, first, there was a myth of whether it exists or not. Two, it’s not something good to do. But yet, there’s always a smile on their face as if, like, if the right circumstances where there, they would definitely do it because it’s fair competition, you know?

MATT: I don’t think it’s ethical but we can go on to the legal side of it. There seems like there’s a couple of issues. One being – correct me if I’m wrong – it’s pretty difficult to figure out who’s actually doing these negative SEO tactics to a business, right?

NASIR: There’s different strategies for negative SEO. Let’s talk about the most common way or common thought of what that is.
Google and its algorithm to decide how the rankings go decided about two or three years ago that all these other companies that were basically using these – what are called – crawlers or spiders to – I don’t know if that’s the right word, actually – all these scripts to create all these backlinks to their sites were kind of manipulating the process. So, what Google said is like, “Okay, if you’re doing that, then we’re going to penalize you because you’re using these so-called black hat tactics.” Then, the response was, ‘Okay, if you’re going to penalize, that means I can do the same thing for a competitor as if they’re doing it and they’re going to have no idea who it’s coming from. Therefore, they’re going to be penalized and that’s going to help me.” And so, it was still unsure how that was going to work and it seems like it was working – or at least people were attempting to do it- and people do report that it did work. I don’t know if it’s for certain or not.
But then, Google responded saying, “Okay, we’re going to give you this Google disavow tool which basically, as a website owner, you can go on there and say, “Okay, these backlinks are not mine so don’t count that.” Some SEO guys say that’s pretty much useless; others say that you have to do it. they find themselves updating it every week, every day, because of the number of backlinks that they’re sites are being attacked.
But what’s funny about all this is that, if you’re just a business owner, how are you supposed to even know that this is going on unless you’re an SEO expert?

MATT: Yeah, that’s a good question, and I definitely wouldn’t know.
Another thing, you know, if you wanted to sue somebody for this, what are you going to go after them for? I guess some sort of unfair competition under the business and professions code or maybe intentional interference with economic advantage? I mean, that’s kind of limited.

NASIR: Yeah, I mean, I’ve personally been thinking about this for a while. But both the unfair competition in California’s business and professions code or you alluded to the intentional interference of economic advantage and so forth, and I don’t know if we want to go into the details of how that’s structured. You can look at my article, we talk about it. But one of the fundamental problems with that and where it becomes difficult is that you have to somehow show that the underlying act is either unlawful – not quite in business professions code unlawful – but, when it comes to economic advantage, the act has to be wrongful, and how that’s defined by industry standards or business standards is a little murky and a little bit harder to prove. It almost seems as though, on one hand, you can find people that actually sell their services. I asked one of our guys that handles SEO and he gave me a couple of links of people that were actually selling themselves as negative SEO experts and so this may be an accepted practice. Maybe not everyone likes it but it might be here to stay so there may be some legal recourse but it’s not that great. It’s not that clean.

MATT: Yeah, it’s pretty tough. I mean, it seems like the way to go, from a business owner perspective, is to just try to not seek the legal side of it more so trying to just use SEO to battle against the negative SEO, if that makes sense.

NASIR: It reminds me of kind of how you deal with Yelp. It’s like, okay, when you get a bad review from a competitor on Yelp and you don’t know who it is, there’s not a lot of legal recourse so what do you do? You kind of have to revert to non-legal methods of boosting your reputation online and getting that Yelp search down or getting other positive ratings on Yelp to counteract that false review. By the way, this is not the only kind of negative SEO. There’s something called non-link-based SEO and this is something I only learned about recently but these are really bad tactics. I mean, this is stuff that may not only be illegal but have very legitimate recourse if you’re able to find out who did it. But those include, for example, actually hacking the websites or posting duplicate content because Google punishes those that just copy content so, what if, every time you published something and your content is copied elsewhere and Google is not able to determine who’s copying who, then your site might get into trouble. But there’s recourse there because there’s copyright infringement, right? But how are you going to keep up with it if it’s happening on a large scale? I mean, you’re going to be sending DMCA notices out everywhere and hoping that they respond.

MATT: I guess we talked about what you can do as a business owner to kind of combat this but do you think this is going to become a more talked about issue or do you think it’s going to become more newsworthy or do you think it’s going to be something that’s going to kind of just fly under the radar and people are just going to find ways to deal with it and move on?

NASIR: It’s a really good question. I think it’s hard to tell at this point but, if history serves as a guideline here, I guess this is my whole criticism of the SEO industry in itself. I mean, since the internet came out, you know, people have been trying to find ways to direct people to their site and search engines have been a great tool for people to find what they’re looking for. Since then, people have been trying to manipulate the process that Google, Yahoo!, and these other search engines use in order to find them sites. But, at the end, the incentive for Google is to find sites that match what the user’s looking for and to have a good positive user experience. And so, therefore, Google is going to continue to modify the algorithm to combat what these SEO guys are trying to do to manipulate. No matter what, it’s going to be a constant battle. Even today, if someone posted a bunch of backlinks that are blacklisted by Google already to your site, how much of an impact that’s going to have may be negligible because Google should be aware that there’s people that are doing negative SEO. They also should be aware that there’s people that are trying to use this as positive SEO and, therefore, it may have an impact, but how much of an impact it’s going to have may be lessened. And then, you know, a year from now, Google is going to change its algorithm again to find new ways to present better content to its users. Like, this is what we do on ourselves, you know, we have quite a bit of organic traffic but it’s because we try to focus on just producing good content.

MATT: Great answer. I was just looking for a yes or no.

NASIR: Oh, in that case, what was your question?

MATT: I don’t even remember how I framed the question so I can’t help you there.

NASIR: I think negative SEO is a very interesting topic.

MATT: Yeah.

NASIR: We talk about this subject a lot about just basically competition in general about unfair competition, you know. We just had the guy from Sno Kone Joe on our podcast a couple of days ago and, when we first started out, it was more of just a competition and it ended up being a different story. But my point is we tend to talk about how businesses compete and where the ethics are and where the lines are because, a lot of times, the ethics don’t match the law.

MATT: That’s the whole thing. That’s why I said in the beginning, there’s the legal side of it. I mean, you can’t do things that are illegal. And then, there’s the ethical side of it. You can do things that are unethical; just it might backfire on you from a PR standpoint. At the end of the day, you have to live with yourself too. If you’re okay doing things that are unethical to get an advantage, then that’s your choice.

NASIR: That’s why you got rid of all your mirrors, right? You don’t want to look at yourself and…

MATT: Yeah, it’s actually funny, when we moved into our house, there was a ton, like, an excess of mirrors everywhere. You couldn’t walk anywhere without seeing a mirror. It was pretty crazy so we did actually take down a significant amount of mirrors.

NASIR: When I was a kid, I was scared of that movie, Poltergeist II, which a lot of people remember Poltergeist I and that was the more popular one, but the Poltergeist II was the one where all these ghosts would appear in the mirrors and that freaked me out as a kid, for sure.

MATT: You haven’t looked at a mirror since then.

NASIR: I haven’t looked in a mirror since then. I don’t even know what I look like. The only way I know is from the cartoon cover art that we have. I assume that’s how I look.

MATT: Yeah. When we paid somebody to do that, we got it back and you had to ask me if that’s you. “Do you think this looks like me?” and I was like, “Yeah.”

NASIR: I was trying to figure out which one was me, actually. I was like, “Is that me?”

MATT: You never know. That would be an interesting way to find out. Yeah, it does look a lot like you. Mine’s pretty close but I think yours is spot-on.

NASIR: Oh, yours is too, I think.
Okay. I’m closing up my windows for our last episode of the week. Thanks for joining us. It was a good week of episodes.

MATT: Keep it sound and keep it smart!

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A podcast covering business in the news with a legal twist by Pasha Law PC
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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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