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SEO Legal Requirements
Author: Chris Price
Copyright © A3webtech 2009-01-28
This article may be republished if the link at the end stays intact


SEO legal requirements

It is assumed that the topic covers professional services offered for a fee. Note carefully that no attempt has been made to define legal concepts such as liability for negligence, tort, costs or damages, and so forth. The article is written by and from the point of view of an SEO consultant and business website owner - no legal resource was used in writing it and no legal opinion has been sought on the result. Owners of business websites or public service sites of any type should engage a legal advisor who specifically advises on website law.


Scope of the law
There are three areas in which SEO services may have legal implications:
  • Normal business operation in the country concerned
  • Legal implications of work carried out in connection with a client's web properties
  • A positive or negative impact on the legal compliance of a client website
Business operation is a matter of regional law and not specific to Internet commerce.

Working on or in connection with a client's property is also a standard matter that is specific to each country but often similar. As far as websites are concerned, the fact that the subject is partly virtual property does not seem to impact the outcome greatly. The issues are specific to web operations but similar in all other ways to normal business arrangements. However there is a greater likelihood that the parties will be in different countries.

Web sites have to comply with the law in many countries. There are three issues here: published information, published documentation, and accessibility. For example a website may have to display a registered business address, or certain resource pages, depending on its country of operation. Accessibility refers to the ease of access to the website's services by all persons using all equipment, specifically  that certain persons may not be disadvantaged by a lack of certain provisions by the site, or by poorly written code. We could add many items to this such as different social groups in different countries that may access the site should not be disadvantaged, and so on, but these are not covered by law.

Website content may conceivably be affected by consultants' work, and new content must not infringe rights or have other issues.


Case law
Laws may be cast in stone but they are not interpreted as such by courts - depending on the country referred to. In the end, case law - the results of previous cases - often determines the way a law is applied.

Website law is very young. There are few cases of prosecutions or civil actions that have gone to a decision  by the court anywhere, when referring to web-specific matters rather than normal business litigation. More often, a case is resolved out of court by a settlement between the parties that terminates the action - and we cannot know the outcome and it does not affect the case law. For example the RNIB in the UK has brought several civil actions against website operators but all were resolved out of court. The case was resolved to the satisfaction of both parties but we have no way of knowing  what that might have involved. It depends on what the objectives of the party bringing the action were. An agreement that the site operation would be changed in some way, or publicity and a likelihood that others would arrange their web affairs in a different way might have been sufficient result, though a payment may have been involved.

A well-known case that resulted in substantial cost to the site owners was Maguire v Sydney Olympic Committee in Australia, where a visually-handicapped person succeeded against the owners of a sports-based website that could be described as a public service site.

Prosecutions (ie government-backed lawsuits) are rare because although all websites must comply with statutary law, in general neither commercial sites nor government sites score well at present. It would be difficult to prosecute a site owner for infringements if the websites of national and city authorities could easily be shown to be deficient. There is also the possibility that unless a government website giving suitable advice on how to comply with the law is able to be found on the first page of search results for eg "website law uk" or "website legal requirements usa", then it could be argued that the government in that region is not doing enough to promote and publicise the requirements. It may be true that this is hardly likely to be valid elsewhere, but if a government wishes to legislate and operate in the icommerce environment, then logically it must also become a participant. It seems illogical to make laws for mariners if mariners have no reasonable access to those laws.


The wide range of SEO provision
SEO services can be offered under a variety of labels. For example there are keyword promoters, link builders, website builders, web developers, online marketers, search marketers, full-service SEO agencies, and  SEO / online business consultants, who may all advertise SEO services of some kind. The narrower the remit, the less areas an SEO provider will work with - and the less they can be liable for. (We omit fringe or disreputable operators such as 'search engine submitters' as not being relevant.)

SEO / icommerce consultants have the widest remit of all, as they will be engaged to increase business revenue rather than promote keywords, get links or buy advertising. In this case, all the following provisions will probably apply.


The legal implications of search optimisation can be grouped in the following areas:

1. If the consultants do not fulfil their contractual obligations
2. If the SEO work causes business earnings to drop rather than rise
3. If there is no appreciable improvement in revenues
4. If there are additional costs that were not advised
5. If the consultants use unethical or shortcut methods that eventually result in other issues
6. If the SEO work causes problems such as server downtime
7. If the consultants introduce content that infringes rights or is illegal
8. If the consultants fail to advise correctly on issues within their remit
9. If consultants do not offer advice on related topics which may impact the client's business
10. Legal area (jurisdiction) implications
11. Other considerations



1. Contractual obligations
In general an SEO firm agrees to carry out work that will improve some aspect of icommerce operation. This may be in the area of improved revenues, or a smaller sub-set of the possible tasks, such as improved website traffic, or perhaps even a very narrow work area such as keyword search position improvements.

There are several modes of agreement, which range from an email 'handshake' agreement through to a full exchange of both sides' contracts by registered post, and involving legal advice at some stage.

The majority of SEO work is carried out under the consultant's contract alone. This is normally issued because it gives some protection from unreasonable clients, and provides a disclaimer. However if the SEO firm provide a contract with unreasonable disclaimer terms, such a contract should be refused.

Remember that you can always refuse to sign a contract as first presented, and should do so if the terms appear too favourable to the other party. The contract will normally be re-presented in a more acceptable form. Some businesses as a matter of course will  present a loaded contract first, but have a more reasonable version available if needed - or they would lose some work.

Contracts are a complex area and if the sums involved warrant it, you should take legal advice. Generally, a contract should be fair to both sides, and simply state the duties of both. Do not sign one that seems loaded toward the other side, or appears too easy to refute - ie its terms can easily be evaded.

Sometimes a contract is provided as the basis for a job description, in other words an outline of what will or will not be done. It may be better to provide such a tasklist in another format, such as a work outline or schedule. Placing such a list in a contract turns that work schedule into a legal definition of what can or cannot be worked on.

Unfortunately, in SEO, this can't be done - as the work differs substantially between website types, market areas, clients' staffing, clients' aspirations, and of course project progress. Stating the work schedule in black and white is not a good idea - does this mean all tasks listed must be completed? How will that be measured? And if other tasks prove necessary, can they be carried out at all, bearing in mind that they are not contractually permitted, and also will not be covered under any disclaimer clauses?


2. Fall in revenue
If business earnings fall instead of rise, at the time of the SEO project or within one year of its completion, how will that affect the client / consultant relationship? If this is seen as a direct result of the SEO project, can the client claim for costs or damages?


3. No improvement in revenues
If business earnings remain steady and there is no appreciable change, what is the position then? In some cases an SEO firm will guarantee some sort of improvement, so the matter rests entirely on what they guarantee in their contract.

For the SEO firm this is a dangerous area, since it is the easiest thing in the world for a client to sabotage an SEO project by refusing to take advice; by progressing the necessary work too slowly; by interfering continually; by second-guessing the consultant and altering the work instructions; by not hiring the staff to fix the problems flagged up; by not scrapping outdated and faulty website technology and investing in new; or even, simply, by not having a budget to fix the issues discovered.

A small percentage of clients will unfortunately belong to one or more of the groups listed above. An SEO project relies entirely for its success on both client and consultant working together toward a profitable conclusion. If one does not fulfill their part of the bargain, the project is handicapped or possibly even doomed.

For the client, this area is also important because there are a measurable number of SEO firms who carry out work that results in no appreciable revenue gains. As an SEO firm this complaint is often heard from prospective clients. Some form of contract clause that provides for a refund (at least) if there is no gain, seems reasonable. In the end, the only thing that cannot be fixed is loss of time, since that cannot be purchased. There may well be other costs in fixing an under-performing website and/or faulty SEO project, though.


4. Unadvised additional costs
An SEO project (or at least a full, proper and complete one) almost always generates additional work that needs paying for. One consultant said, "The dirty little secret of SEO is that [to do it right] a website redesign is usually needed". This correctly infers that many if not most websites experience poor results due to a poor website, so that remedial work or even an investment in new technology is needed - which may not be cheap.

The SEO agency need to state clearly from the beginning that their fees are not the end of the matter - unless of course they are are providing a 'one-stop-shop' solution that includes full solution of all issues located. However this is like writing an open cheque and cannot be a common arrangement. There are occasions where the SEO agency fees will be eclipsed by costs for other work that is needed. For example if the website or web application is found to be obsolete and faulty, and a new CMS is required, then costs may be substantial. It seems a good idea that this sort of area is investigated first, on a time-based fee structure perhaps, before a project and its associated contract are begun.


5. Unethical methods
This refers to 'black-hat' SEO practitioners - or perhaps just the inexperienced. It is very easy to get results by shortcuts or other quick and easy methods that result in problems in the longer term. More experienced black-hat SEO developers exploit search engines' weak areas in order to get good results fast. These ploys require skill and experience but are still far easier to succeed with than ethical methods.

These two types of shortcuts can get good results in the short term, and even excellent results such as top search positions, for example. But in the medium to long term - after six or nine months - results crash when the search engines find they have been deceived. Recovering from this can be a desperate process.

Shortcuts can work well for half a year or more, but usually fail before a year has passed. By this time the operators have normally moved on. What happens is that quiet and less-visible sites can usually get away with all sorts of transgressions, since there are hundreds of millions of websites out there. But when good search positions are achieved and the site is placed highly, then the position has changed and attention becomes focused on them. Unethical methods cannot normally survive this attention for long, and the search engine's algorithm eventually de-rates the site, or human inspectors (and commercial rivals of course) pick up the irregularities.

Unfortunately this situation will worsen due to increased commercial pressures and more operators coming into the SEO field. At the very least, one should protect against a zero gains situation, as the very large number of people advertising SEO services indicates that few can actually carry out the work to optimum effect. When done correctly, SEO implies technical and marketing knowledge that takes years of experience to gain.

Unethical methods are:
  • Methods that are against the law
  • Methods that do not accord with accepted community standards of behaviour
  • Methods that contravene search engine's quality guidelines
Ethical methods are any that do not correspond to the above. To judge which is which, if you are not sure, you can ask, "Does this method improve the quality of the website? Does it improve the experience for visitors? Will it improve sales without injuring our business reputation?" If the answer is no then the method is probably suspect.

An SEO agency should guarantee the use of ethical methods only. It is up to the client to ensure that they have legal redress in case of the worst.


6. Server downtime
If an SEO consultant crashes the server, and/or causes data loss, who is liable? This is quite easy to do and therefore a client would be advised to protect against this eventuality.

The webmaster should take regular backups, which need to be kept in series rather than overwritten. A contract clause to protect the client should be in operation. The SEO firm, though, will have a disclaimer against this in their form of the agreement. Some negotiation may therefore be necessary.

Our own policy is that the client's webmaster and/or hosting tech support should action core website and server changes, under our instruction. But this is very hard to arrange in some cases, and so SEO tends to be a flexible service that differs from site to site. Someone has to do it, and with a lack of suitable personnel, SEO staff must action the work instead of simply consulting.


7. Introduction of non-legal content
It is conceivable that work on the site may involve the publication of content that infringes copyright or is illegal in some way. If the SEO agency were responsible for this then they would be liable.


8. Omissions in advice
Professional services are offered under all sorts of conditions - or lack of them. This is the area of professional negligence, ie mistakes or omissions.

It may be that the SEO consultant is knowledgeable in all areas necessary, or perhaps there may be knowledge gaps. SEO agencies tend to specialise in one or two areas of the business, and this means there may be weak areas. In some cases they may advise that other consultants are engaged, but the general trend is for them to market their services as complete. Unfortunately this is something of an impossibility as they would need more than ten specialists on their team, since the work area is now extensive.

The main areas that may or may not be covered are server technical work; website technology work with database-driven applications such as CMS or ecommerce; HTML, PHP or ASP websites; specialist websites such as art-based or membership-based; specialist markets such as law or real estate; usability; copywriting; marketing; link-building; social web promotion; search engine research; competitor analysis; website auditing; paid marketing including PPC and advertising channels; website monetising; web analytics; basic legal compliance; and others. Some of these are core to the SEO process - some are ancillary but certainly included on a regular basis - and some are additional but sometimes applicable.

It is reasonable to conclude that any one agency cannot cover all these areas. But will they advise that other consultants are needed? In our own case, we specialise in website technology, CMS and ecommerce, usability, on-site marketing, and some areas such as art-based sites. We advise that other consultants are needed in other areas. In many cases we sub-contract these specialists or partner with them.

This certainly applies, in our case, to off-site paid marketing such as PPC, and we engage partners to handle this area (or put clients in touch). Since we are technical specialists this seems an obvious requirement.

The opposite case does not seem to be true though: there are many SEO agencies composed principally of marketing / PPC staff (and these are probably the majority), who do not seem to operate with the same ethic, and handle all the work in-house. You will find obvious technical errors not only on their client sites, but on their own websites as well.


Legal compliance
It is debatable whether a website's legal compliance is the remit of SEO consultants. However, since 99% of website owners do not employ a law advisor, and somebody has to do something about it, we normally try and fill in here. Our position is that since we operate principally as icommerce consultants, and work to help a business owner to improve the quality of their entire operation, then we must advise here. For example a website must pass accessibility testing, and present some resources that are needed for legal compliance. (ref: Maguire v Sydney Olympic Committee [Aus]; RNIB v various [UK].) There are some areas we can help with but ultimately a business website owner needs a legal advisor.

In the case of SEO-related contractors with a narrower remit, such as keyword promoters and link builders, obviously they have no obligations in this area. So it is a question of precisely what you understand by the term 'SEO', and what your consultants are engaged to do.

SEM, search engine marketing or search marketing or online marketing, is an associated discipline. In theory it refers to providing improvements via an equal proportion of organic and paid-for services. In practice it is generally found that SEM agencies devote most (or all) of the spend to advertising or other related off-site tasks, not on-site work and related areas. An SEM agency cannot be held responsible for a website's legal compliance because they do not normally contract to optimise the site in any way. If they do, then they become liable in all areas that an SEO consultant is.


9. Omission of related advice
Two important areas not normally covered by SEO work that affect an icommerce website are website security and website law. These do not come under the SEO consultant's remit but impact their work in some ways, and certainly affect their client sites.

Since a client may have limited knowledge of either icommerce or website and server operation, an SEO agency is duty-bound to advise, briefly, on many such issues. You could take the view that this is outside their remit so should be ignored; but a total service that aims to improve a client's business in the long term should include brief advice, if only to the extent of making the client aware that these areas need examination. Usually, they also need action.

If there is a website security event during or after SEO work, then the agency may be implicated, unwittingly and unwillingly. Consultants must certainly advise if they find anomalies that need reporting. Such things include outdated software, malware or hidden links on the site, poor security procedures, and server attacks. The right procedure is to advise that a security consultant is employed. This advice should be given in writing and receipt acknowleged.

Website law used to be a very simple area in the 90s. Now it is a potential minefield, at least where important and highly-visible websites are concerned. If you operate a popular website you must engage a law advisor in your server's physical location, and your market areas (if they differ).

For smaller sites that don't raise their heads above the parapet, things are more relaxed - but still of importance to a business. You should research Internet law in your area/s - put in place those measures you find missing - correct the mistakes you identify - and then ask professional advice.

An SEO agency should advise on this process - in brief. Obtain a written receipt of your outline advice.


Our view of security and law issues
We normally advise clients what to do, in outline. They often ignore this advice. We then contribute anything we can reasonably do to help, and to prevent further problems - such as implementing better password procedures or supplying resource pages that are obviously needed, and so on. We do what we can and have to leave it there, in many cases.

The hardest thing for any website owner to do is provide page text, or arrange to have required pages supplied. Even firms with a staff of twenty cannot find anyone to write text or upload pages. Therefore we generally include in our SEO contract a clause that states some actions are required as a minimum or the Agreement is void and unenforceable. This does not refer to security or law issues but the problems are inherently the same.

This has been found to be necessary, since you can advise a client that a Privacy Policy is necessary; you can point them toward the resources in order to construct it; you can supply a template outline; you can pre-build a template page and advise them of its existence; but you will wait in vain for its completion. And, of course, you cannot and must not complete this type of document yourself, since you then become the liable party if it fails at law.

An SEO / icommerce consultant should advise on, but not complete, arrangements in areas such as this. It will be found that many business websites are not legally compliant, and an ethical SEO agency would be failing in their duty if they did not at least advise clients of these issues.


10. Legal area
The physical location of legal compliance or litigation is more important with website issues than many other business types. For example the website may be owned by a person in one country, hosted in another, operate mainly in that country but also in a third, and consultants might be located in a fourth country.

What laws apply to the website and its business? What law applies to work done on the site by consultants or contractors?

The most likely law to apply in all these cases is that of the physical location of the server, ie the hosts. This can be moderated by circumstances such as:
  • The fact that a site is in the language of and sells to residents of another country
  • A statement of jurisdiction that is published on the site
  • A contract term, in the agreement/s that work is carried out under

11. Other considerations
Perhaps we should also consider Search Engine Law. They set out Commandments to govern the way websites will trade in partnership with them, and these are important since at least 50% of most websites' traffic will originate from search. These laws are interesting because they are largely unwritten - like an iceberg, we can only see a small part of the whole. The laws are called Quality Guidelines, Terms of Use, and so forth. We certainly need specialists to interpret them for us, as their application is often arcane and complex. The unwritten laws may need specially qualified people to divine them and speculate on the possible implications. Such persons are sometimes known as SEO bloggers.


Chris Price is the Technical Manager of A3webtech, who are web business management specialists and consult on all aspects of icommerce. You can find many similar resources at www.a3webtech.com .

 
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