Online compliance: SEO regulation after Irwin Mitchell's delisting

Parts of the technology blogosphere went into overdrive in January after Irwin Mitchell apparently vanished from the world’s largest search engine, Google. Now that the dust has settled, what are the long-term ramifications for internet governance and compliance and what can law firms do to guard against this happening to them?

Internet searches

From almost the dawn of the internet, companies large and small have been trying to influence search engine results. Given the large number of searches they process, it is no surprise that all of the major search engines rely principally
on machine rather than human analysis
to decide who ranks where in their
search results.

Different search engines do this in different ways. At the start of the search engine industry, rankings were influenced by metatags – a bit like people with sandwich boards pointing unsuspecting shoppers in directions they did not intend to travel.

The abuse of the metatag system led to litigation in the High Court in England and Wales as early as 2000 in Road Tech Computer Systems Ltd v Mandata (Management and Data Services) Ltd [2000] IP&T 1029. The court decided that it did have the power to police search engine rankings where they had been unfairly influenced by the use of one company’s trademarks in the metatags
of another.

Four years later, the issue of metatagging reached the Court of Appeal in Reed Executive plc & Another v Reed Business Information Ltd & Others [2004] EWCA Civ 159. By then, however, the search engine industry had moved on, in part because search engine operators saw the opportunity to make money from search.

Astute search engine operators realised that they could mix traditional search results (also sometimes known as ‘natural’ or ‘organic’ searches) with paid-for placements. The top five places in a search engine might then be auctioned for a given search term rather than just allocated on the basis of relevance.

The paid-for search industry grew rapidly. One operator alone grew from a start-up in 1997 to having revenues of more than US$1bn just six years later. Today’s big gorilla in the search world, Google, started its own paid-for placement in 2002, by which time Google, AOL
and MSN had a combined share of the search market of 68 per cent. With the dominance of these major players, a new industry built up around search engine optimisation (SEO).

SEO experts try to second guess
the algorithms used by the largest search engines to influence traditional search results and decide which paid-for searches to bid on to put a website at the top of
any given search request. In response, search engine algorithms have become more complex – Google says that its current algorithms rely on more than
200 unique signals that make up its
search ranking results.

Many of the major search engines have a love-hate relationship with the SEO community. Paid-for search revenues are significant (Google’s total advertising revenues were US$42.5 billion in 2012), but most search engines, naturally enough, dislike attempts to influence traditional searches for free. As the way in which searches are compiled has increased in sophistication, so have the black arts of those who try to work out and plan around the search engine’s algorithms.

The Irwin Mitchell case

It is against this background that Irwin Mitchell had its problems. While these disputes rarely become public, Google apparently reacted to some SEO activity by Irwin Mitchell by acting as a kind of de-facto search engine regulator. It
seems that Google penalised Irwin
Mitchell by removing its domain names from its traditional search listings on
the alleged basis that Irwin Mitchell
had hyperlinked to its website in
various blog and forum posts.

The provision of links to a site has long been one of the measures used by a search engine to judge a site’s popularity, the logic being that, if other sites link to and feature the site, it must have relevant content. Some less scrupulous SEO agencies have tried to exploit that part of the algorithm by creating hundreds of links, with the hope that Google would pick them up and push the site up its rankings as a result. Google has apparently previously taken similar de-listing action against companies that violate Google’s rules designed to reduce the risk of search results being influenced by unreliable links to its website.

The technical workings of Google’s search results are, of course, not known, nor is the process for Google undertaking action known. But, it is presumed that Google contacts any alleged offenders prior to action being taken and that those offenders can then contact Google once they have rectified the situation (such as by removing the offending links) in order to seek restoration of their domain names to the traditional search listings.

This is not the first case of Google’s actions attracting criticism. In one case, according to anecdotal evidence, Google removed the website of a schoolgirl for alleged breaches of its rules – without warning and without explanation.

It is understood that Irwin Mitchell has since resolved the matter with Google and its website has been re-listed. Some commentators have expressed concern about the timing of Irwin Mitchell’s de-listing coinciding with Google’s expansion into legal services. There is, however, no evidence of that being anything other than a coincidence.

Market dominance

The Irwin Mitchell case comes amid wider allegations that Google is abusing its dominant position in internet searches. The European Commission is currently investigating complaints by competitor search providers about unfavourable treatment of their services in Google’s unpaid and sponsored search results, coupled with an alleged preferential placement of Google’s own services which (according to the complaint) promote Google at the expense of its competitors. In Europe, Google has an estimated 75 per cent market share of the search market. So, the legal basis of the investigation is whether the company has abused its dominant position in those online services.

Google has offered various concessions to meet the Commission’s competition concerns, which the Commission is apparently satisfied with. Apparently, under its latest proposals, Google will let three rivals display their logos and weblinks in a prominent box and content providers will be able to decide what material Google can use for its own services. Google will also scrap restrictions that prevent advertisers from moving their campaigns to rival platforms such as Yahoo!’s search tool and Microsoft’s Bing.

The Commission is currently awaiting official comments from certain interested parties on the latest proposed concessions. The case has been ongoing for some years and, in light of the concessions, the Commission hopes to draw the matter to a close sometime this year. But, even if that matter is settled with the Commission, it could open a second investigation into Google’s Android operating system for smartphones, which Google is accused of using to divert traffic to its search engine.

In addition, Google faces separate investigations by data regulators across Europe as the result of its data acquisition strategy. It is undoubtedly the case that, as more data is collected on individuals’ internet searches and locations, the results of each search can be more tailored and accurate to each user.

The concern, however, has been the mass combination of data across Google platforms including emails (Gmail), video (YouTube), mapping (Google Maps), advertising (DoubleClick), mobile (Android) and other sources to feed into individual search engine results. This has already attracted regulatory attention in Spain, France and the Netherlands, and more action will likely follow.

Here, again, lawyers need to exercise caution. Law firm websites commonly use multiple Google products – for example, Google maps of office locations alongside YouTube videos of recent presentations. We need to be cautious not to inadvertently disclose our clients’ details to a third party, particularly when the data the firm has provided to Google can be combined with other data and resold.

Future of regulation

Given the increased dominance of Google and the slow pace of the European Commission’s intervention, some commentators suggest that greater regulation of search is required.

Again, the history of internet litigation might show us the way. One of the
great myths of the internet world is that
the internet is unregulated. In fact, the
internet is heavily regulated from censorship in some countries to the increasing number of defamation actions, the increased role of the criminal courts and specific legislation on things like cookies and internet selling.

It is hard to see how an international, impartial, search engine regulator could
be set up and funded. What is however more likely is private action from concerned individuals or companies
to regulate search engine practices.

As with the initial dispute over metatagging, civil litigation is likely to provide the answer. We are likely to
see more court involvement in the workings of search engines like Google.

As long ago as 2006, an aggrieved company in the US sought a court order disclosing Google’s algorithms in KinderStart v Google, case 5:06-cv-02057-JF, N.D Cal (motion
to dismiss granted 13 July 2006).

As search becomes more and more relevant to the survival of a business,
cases like this are likely to become
more frequent.

A compliance issue

The dominance of Google would
seem to be a compliance issue needing clear thinking and guidance, both in
terms of having a better understanding
of the technical aspects of SEO and
the procedures involved in delisting
and relisting.

Businesses need to react quickly to any delisting notice. Since SEO is outsourced by most firms, clear terms and conditions will also be needed with suppliers telling them what is and is not expected of them.

Law firms will also need to choose their SEO consultants wisely to avoid
the reputational damage that might come from association. As a result of the increasing dominance of a select few search engines and the critical nature
of internet traffic to most legal practices, online compliance needs to be on the to-do list of every law firm.

Jonathan Armstrong is compliance and technology partner and André Bywater is principal adviser on European regulation at Cordery (www.corderycompliance.com)

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