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Google is getting ready for a day in court, after a precedent-setting move by a Florida judge who denied the search engine giant’s motion to dismiss a case that could redefine how businesses engage in search engine optimization. The case is especially noteworthy, as most previous challenges based on Google’s search results have resulted in immediate dismissal.
Google claims the plaintiff, e-ventures Worldwide LLC, engaged in “search engine manipulation” in order to cause its websites to be ranked higher in Google’s search results, stating that doing so was “bad behavior” that had to be deterred. Consequently, Google summarily de-indexed hundreds of the plaintiff’s websites without review or redress. The de-indexing was not based on algorithmic rules or webmaster guidelines, but rather, subjectively applied based on an anonymous tip from an unnamed third party.
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The larger question here is chilling to virtually any small business which seeks a higher ranking, since Google’s own definition of search engine manipulation is vague and unpredictable. According to a brief filed by e-ventures’ attorney Alexis Arena at Flaster Greenberg PC, “Under Google’s definition, any website owner that attempts to cause its website to rank higher, in any manner, could be guilty of ‘pure spam’ and blocked from Google’s search results, without explanation or redress.”
“It seemed as though I was personally targeted by Google,” said Jeev Trika, CEO of e-ventures Worldwide. “I would purchase a brand new domain and post nothing more than ‘bye bye world’ and within minutes, Google would de-index that domain too. So, Google’s argument that it was removing websites because they were violating Google webmaster guidelines falls flat. It was not about the website content, it was about targeting the website owner. The fact that Google targets people like this is not something that is consistent with their published policies, or what they tell the public.”
The brief notes that “search engine manipulation” includes anything done to a website to make it more visible on Google — and therefore virtually any business using generally accepted SEO tactics (or any marketing tactics, for that matter) could be accused of manipulation, giving Google an excuse to de-list a website arbitrarily and outside of its algorithmic process, or as in the case of e-ventures Worldwide, de-index all of a website owner’s properties summarily. Should Google prevail, commonly used tactics such as title tags, incorporating keywords in headlines, incorporating legitimate backlinks, or even writing a daily blog would all be suspect. The outcome of this case could dramatically affect how virtually every business in the world does its online marketing.
A First Amendment question.
Google is claiming First Amendment rights, stating that it is a publisher and free to publish or not publish anything it sees fit. How Google defines publishing is a bit of a stretch — they do publish a constantly evolving list of algorithmically-ranked links to websites, but that is by no means the same as operating as a media outlet which exercises editorial discretion. By journalistic definition, a SERP isn’t the same thing as an article — it’s just a mechanically ranked database. Google’s entire case however, rests on a First Amendment argument.
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There is an important distinction being brought out in this case that goes far beyond the rights of e-ventures Worldwide, and calls into question the very nature of SEO and digital marketing. In previous cases, the courts have found that Google does indeed have First Amendment protection, but in those cases, the questions related to the rankings of a website, rather than deletion of websites simply because they were affiliated with a person or a company. Previous cases have held that, for example, if someone claims they should be ranked higher in the SERP than Google shows, Google prevails on First Amendment principles. “But, if Google bans 366 websites from all search results because they are affiliated with a particular person or company, then that is a very different thing than anything the courts have addressed previously,” said Alexis Arena, e-ventures Worldwide’s attorney.
Google did not offer a response to our request for a comment, but they did provide a copy of their most recent June 1 legal filing, which attempted to reinforce their First Amendment claims and argue again for dismissal, again reinforcing its opinion that search engine results are “editorial opinions” and therefore qualify for First Amendment protection.
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“Before Google refined their algorithm, getting on the first page of search results often could be achieved with tactics like keyword stuffing and artificial linking schemes, but those days are gone,” said Jeev Trika, CEO of e-ventures Worldwide. “Because of changes to Google’s algorithms, Internet entrepreneurs and Web publishers like myself now go the extra mile to provide websites and articles that are relevant, useful, and written to journalistic standards, and that has made the virtual world a better place.”
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But, says Trika, Google has overstepped its bounds in invoking First Amendment rights to arbitrarily quash websites without review, on the basis of an unsubstantiated third party anonymous tip, and outside the realm of the Google algorithm. “Google’s actions deny businesses the basic right to market themselves in the digital economy,” said Trika. “Google in reality controls the market for Internet advertising, and must be held to a higher standard.”
Trika suggests “Google is not drawing a distinction between generally accepted search engine optimization techniques — such as simply creating and publishing outstanding articles and useful information — and what they refer to as search engine ‘manipulation.’ SEO is simply engaging in an ever-changing array of tactics to gain recognition — something businesses have done long before the Internet existed. By Google’s own definition of ‘manipulation,’ any company using header tags or incorporating keywords into headlines could be subject to arbitrary de-indexing.”
“Google’s business model isn’t, at the end of the day, providing a free search engine or publishing data, it’s selling advertisements,” said Trika. “The free search engine is merely a vehicle for doing so. Google has an economic reason to deny legitimate Web publishers who are promoting SEO placement in the SERPs so that they can sell more advertisements, but that type of anti-competitive action should not be protected by the First Amendment.”
Ever since the first advertisement appeared in the very first newspaper, companies have attempted to use marketing, advertising and public relations tactics to bring more attention to themselves. SEO is merely one more tool in this time-honored commercial tradition. The outcome of this case may well have a lasting effect on how companies move their marketing initiatives into the digital world.
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