Search engine optimisation (or “SEO”) is a method of increasing the likelihood that a webpage or website will appear higher on a list of a search engine’s unpaid results. Many businesses use SEO as part of their online marketing strategy to increase online traffic, with the aim of generating business leads, increasing brand awareness generally and expanding market share.

The most dominant search engine is Google, which services two out of three searches conducted on the internet worldwide.  Search engine algorithms change regularly and often without announcement – for example, since 2010, Google has made over 600 changes to its search engine algorithm each year.  Broadly speaking, these changes reflect perceived future needs of consumers and attempts to increase the relevance of search results to user queries. For example, on 19 April 2015, webpages which Google deemed to be not “mobile-friendly” were demoted in search engine results – a reflection of the increasing quantity of searches conducted from mobile devices.

Unfortunately, as there is no direct legal relationship between businesses with webpages and the search engines that index those webpages, there is little recourse for a business even if the executive decision or unilateral acts of a search engine service provider demotes a webpage ranking or deprives a webpage of traffic (such as by removing it from search indexes altogether). Generally it involves rectifying a webpage in an attempt to meet criteria dictated by the search engine and resubmitting it. Where multiple search engines delist or demote a webpage, this exercise becomes more involved. Successful SEO strategies therefore require an understanding of the algorithms employed by each search engine to provide to end users the most relevant content responsive to that user’s search query on that search engine.

Many businesses rely on the experience of SEO service providers, each of which will have numerous strategies to increase page rankings. Generally, these will involve increasing the apparent trustworthiness, authority or relevance of a webpage to a given search term or phrase. The most successful SEO strategies require close business partnering to manage the business’s public profile via the webpage, link appropriately to official social media pages and ensure webpage content is constantly monitored, updated and relevant. 

The least successful will involve practices which aim to exploit features used to rank pages, such as generating high numbers of inbound hyperlinks from third party websites, adding keywords of broad or minimal relevance in invisible metatags or dummy-pages which are invisible or inaccessible to users; and/or copying content from competitors or other third parties, without their consent, in an effort to redirect their user traffic to the target webpage. Businesses should be aware that search engine algorithms are constantly revised to target such practices, which can result in demotion in ranking of, or delisting from, search results for those webpages without notice.

Further, some practices which involve using a competitor’s trade mark can give rise to a risk of trade mark infringement or misleading and deceptive conduct. A few recent Australian cases where courts have considered these practices are summarised below:

Given the variation in approach by courts, businesses should be cautious when using a competitor’s registered or unregistered trade mark especially in headlines and text visible to end users.

The consequences of any illegal conduct or dubious SEO strategy generally affect the business employing the strategy alone and not the service provider proposing it. Not only may a business suffer lost web-traffic, potential business revenue and reputational damage, it must also go to the cost of reversing changes to its webpage or even conduct further inquiries and remediation to remove material from third party websites.

For that reason, when considering a SEO service provider or engaging in a SEO strategy, it is important to:

  1. carefully consider the proposed SEO strategies and whether they are directed to improving the quality of the webpage for end users, or exploiting perceived gaps in a search engine’s algorithm;
  2. avoid using any competitor’s trade marks or signs, particularly in ways that are visible to the end-user;
  3. keep abreast of the latest significant updates to search engine algorithms and policies to ensure the SEO strategies employed will not have a negative effect; and
  4. ensure contracts with SEO service providers include provisions obliging them to comply with all laws and respect third party intellectual property rights, in addition to obligations to remediate and indemnify for breach.