Negative SEO Lawsuits: Coming Soon

April 14, 2015

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.

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.

Nasir Pasha

By

Nasir N. Pasha is the managing attorney of Pasha Law, providing essential legal services and support to businesses and corporations in California, Illinois, New York, and Texas. He oversees all of the firm’s operations and is a pivotal force in maintaining client relationships and ensuring that each transaction is brought to its best possible conclusion.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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