Copyright, Crime, Negative SEO, Tort
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Negative SEO and legal remedies

Storm-Troopers

The negative SEO campaign against WP Site Care

By now, many in the WordPress community will have heard of the negative SEO campaign against WP Site Care that Ryan Sullivan, its founder, described in Negative SEO: Destroying Businesses One Spammy Backlink at a Time. On this occasion, the negative SEO attack appears to have been caused by voluminous backlinks, including a “spike in unnatural links from lots of unsavory sources over the course of a few days” which, in turn, appears to have caused a plummet in Google rankings.

Ryan explains that his company’s bottom line suffered a significant hit as a result of the lower traffic volumes to the site and that they were able to trace the backlink attack back to the source: someone within the WordPress community. He says:

“They did everything through a third-party, an internet hitman of sorts, to try and cover their tracks, but they weren’t quite careful enough and we were able to uncover where everything started.”

Ryan exercised considerable restraint in not naming any names when, it seems, he could have done so. All respect to him, I suggest, as others might have been more damning.

Purpose

The purpose of this post is to assess the legal remedies that might be available to a company in WP Site Care’s position. I’m not encouraging litigation on the part of WP Site Care or anyone else. Rather, I just want to float potential bases of liability. I’d also note that we don’t have specific information as to the kinds of keywords and specific backlinks used in the attack against WP Site Care.

This post is not limited to the kinds of negative SEO deployed against WP Site Care. I am, instead, going to discuss negative SEO in broader terms and in relation to its various kinds. I should also note that this post only scratches the surface of what can, at times, be a complex topic.

Different kinds of negative SEO

The first point to note, then, is that there are various kinds of negative SEO. I don’t profess to be an expert on negative SEO, but the various flavours appear to include these:

  • backlinks: the heinous use of backlinks (also known as spam links or Google bowling) where someone creates large numbers of dodgy links on other sites (we’re talking hundreds, thousands, tens of thousands or more) to your site, in an attempt to make Google treat you as a spammer;
  • duplicated content: duplicating an innocent site owner’s content and either getting it indexed before the innocent site owner’s site is indexed or adding the content to multiple directories, ezine sites and the like;
  • hacking: certain forms of hacking, such as (1) hacking a site, accessing a site’s templates and database and adding new pages with voluminous amounts of inappropriate links, or (2) altering the site’s robot.txt file to ask Google’s spiders to stop crawling and indexing the site;
  • false reporting to Google: repeated reporting to Google’s spam crew of an innocent website in an attempt to adversely affect the innocent website’s page ranks;
  • false takedown notices: sending in multiple takedown notices to an ISP or web host alleging that content on a competitor’s website is infringing copyright when the competitor’s content is actually non-infringing and the person sending the takedown notices knows that; or
  • fake reviews: there are various examples of fake reviews but two prominent ones are (1) where an unscrupulous person writes a large number of 5 star reviews, usually for a competitor’s site, in a manner that makes it appear as if the competitor has paid for the fake reviews, in an attempt to elicit complaints against the competitor by people who think it’s writing fake reviews, the goal being to lower its ranking in search results; or (2) where an unscrupulous person posts fake and negative reviews about a competitor’s goods or services with a view to lowering the competitor’s average popularity ranking and therefore reducing its page rank, e.g., in particular commercial services, for popularity-based searches.

Remedies

Thanks to Rae Allen for his Themis photo, licensed under a Creative Commons Attribution 2.0 Generic licence.

Thanks to Rae Allen for his Themis photo, licensed under a Creative Commons Attribution 2.0 Generic licence.

When faced with these sorts of attacks, often the first priority will be to shut them down or reverse the damage by, for example, complaints to Google, the use of Google’s disavow link tool, complaints to third party sites hosting spam links, technical means (where possible), and so forth. But what if your company has taken a real and demonstrable financial hit? Can it sue the perpetrator or report it to relevant authorities?

The answer is what some would say is a typical lawyer’s answer: it depends.

The availability of civil remedies (remedies for which individuals or companies can sue in court) depends on a range of factors, including:

  • the type of negative SEO that has been deployed against you;
  • the manner in which it has been deployed;
  • the country’s laws that apply to your situation (not necessarily an easy question in some cases);
  • your ability to identify the perpetrator(s);
  • your ability, if the perpetrator is offshore, to get him, her or it before a court; and
  • your ability (in some cases) to prove loss or likely harm.

In practical terms, your ability to pursue a legal remedy will also depend on whether:

  • you have the resources, financial and mental, to do so, as litigation and other forms of dispute resolution can be both costly and stressful; and
  • you have or can obtain the evidence you’ll need to prove your case.

I should also mention the criminal side of the coin. In more serious cases of negative SEO, the perpetrator may have committed a crime, in which case the relevant enforcement authorities would need to be notified (if they don’t already know) and decide whether to prosecute. For example, New Zealand’s Crimes Act 1961 contains offences for accessing a computer system for a dishonest purpose and damaging or interfering with a computer system (sections 249 and 250), the United States has the Computer Fraud and Abuse Act which criminalises fraudulent and related activity in connection with computers (18 U.S. Code § 1030), and the United Kingdom’s Computer Misuse Act 1990 contains offences for unauthorised access to computer material, unauthorised access with intent to commit or facilitate the commission of further offences, and unauthorised acts with intent to impair, or with recklessness as to impairing, the operation of a computer (sections 1-3). Many countries will have similar laws.

Returning now to civil remedies, and with all the above caveats in mind, what are the potentially available legal remedies? I’ve set out below some examples that may or may not be available or have an equivalent in your country.

Remedies in backlinking situations

In the absence of a perfect storm of facts, you’re unlikely to be able to sue a “bad backlinker” for trade mark infringement. However, if a backlinking site’s backlinks are contained within a copy of your copyright content that has been reproduced on the backlinker’s site and other sites without your permission, you may have a claim for copyright infringement and that, in turn, may (depending on your country’s laws) enable you to issue takedown notices to a search engine, ISP or web host to have the infringing material removed. Laws of various flavours that enable this exist in, for example, the United States, United Kingdom, Australia and New Zealand.

Some lawyers have argued that a deliberate backlinking campaign designed to detrimentally affect your business might also give rise to causes of action in tort for the likes of negligent conduct causing economic loss, tortious conspiracy or unlawful interference with business. Whether that is the case will depend on the precise facts of the campaign, the participants involved and the country’s law that applies to the dispute.

If backlinks point to and identify you or your site and contain words that have a ‘defamatory sting’, the backlinker may have have defamed you. For example, if you were an innocent and law-abiding WordPress consultancy but backlinks contained words like, “WPSiteManagement steals client funds”, you may be able to sue the backlinker for defamation. In some countries, the tort of injurious falsehood may also be a runner. In this sort of case you might, for example, want to seek an urgent interim injunction to require the backlinker to remove the offending links and then pursue a main action for damages.

Remedies for duplicated content

If someone has duplicated your site content (with a view to either getting it indexed before your site is indexed or adding the content to multiple directories, ezine sites and the like), that someone will in all likelihood have infringed your copyright. As mentioned above, in such circumstances you may have a claim for copyright infringement and that, in turn, may enable you to issue takedown notices to a search engine, ISP or web host to have the infringing material removed.

If your country doesn’t have such laws, you may be able to seek urgent injunctions in the courts, requiring the offending content to be removed from the third party site(s). In both cases, you may (depending on your country’s laws) be able to seek compensatory damages (which compensate you for the loss suffered as a result of the infringement) or an account of profits (where the infringer pays you an amount that is equivalent to the profits they generated as a result of using your IP).

Remedies for hacking

Depending on the country’s laws that apply, you might be able to bring a civil action against a hacker who rips into your template files and adds voluminous spammy links or brings your site down. You might have a claim under statute, or at common law (in common law countries at least), for the likes of trespass to chattels. In some countries, such as the United States, a civil action may be available under statute where a computer-related criminal offence has been committed (in the United States, see the Computer Fraud and Abuse Act, 18 U.S. Code § 1030(g); see also Civil Actions at PeterToren.com). Of course, the availability of a civil remedy and one’s ability to identify and sue the hacker are quite different things.

Remedies for false reporting to Google

If you’re the victim of false reporting to Google, you might (depending on your country) have a cause of action for the publication of false information causing pecuniary loss (in many common law countries this amounts to the tort of injurious falsehood) and/or defamation. In some countries, like Australia and New Zealand, you may also have a remedy under fair trading legislation that prohibits misleading and deceptive conduct in trade. (In Australia the legislation is the Trade Practices Act 1974; in New Zealand it’s the Fair Trading Act 1986.)

Incidentally, in some countries this sort of thing may also be a crime, at least where it can be established that loss has been caused. For example, under section 240(1)(d) of New Zealand’s Crimes Act 1961, “every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right, [among other things], causes loss to any other person”.

Remedies for false takedown notices

Where you’re the victim of someone deliberately issuing false takedown notices to an ISP or web host, you might (depending on your country’s laws and the facts) have a claim against the perpetrator for the tort of injurious falsehood. In some countries, such as the United States, a civil remedy for issuing false takedown notices is enshrined in statute. For example, 17 U.S. Code § 512 says this:

“(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”

In some countries, like Australia and New Zealand, you may also have a remedy under the fair trading legislation mentioned above that prohibits misleading and deceptive conduct in trade.

Fake reviews

If you’re the victim of fake reviews of the kinds described above, again you may (depending on your country’s laws and the type of fake review) have causes of action against the ‘reviewer’ for the likes of injurious falsehood, defamation or negligent misstatement. If multiple parties are involved in perpetrating the fake reviews, you might have a cause of action for conspiracy. In some countries, like Australia and New Zealand, you may also have a remedy under the fair trading legislation mentioned above that prohibits misleading and deceptive conduct in trade.

Summing up

As you can see, a range of malicious or otherwise offensive behaviours fall under the banner of ‘negative SEO’. Whilst legal remedies may not be available for all of them, for a good number of them remedies may well be available. Much will depend on the facts of a particular negative SEO campaign, which country’s laws apply and the other dependencies mentioned above. At the same time, the availability of a legal remedy and one’s ability to pursue it are different things. In addition to the dependencies I’ve just mentioned, a victim of negative SEO that wishes to claim damages for loss suffered will need the mental and economic stamina to see a claim through the courts.

If you’ve suffered loss due to a negative SEO campaign and would like to assess your legal options, I suggest you contact an IP/IT/litigation lawyer in your area, preferably one with a good understanding of the web.

Thanks to Gordon Tarpley for the Storm Troopers photo, licensed under a Creative Commons Attribution 2.0 Generic licence.

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