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Search Marketing Techniques, Deceptive Advertising Laws & Other Laws

Alan Perkins's picture

A wide range of techniques may be used to solve search marketing challenges. Some of these techniques have been variously labelled as "spam", "black hat" and "unethical" and the first two articles in this series considered Black Hat/White Hat and Ethical Search Marketing. This article proposes that some search marketing techniques are, in and of themselves, illegal.

This article considers search marketing techniques and methods, irrespective of the marketing message content. Therefore, it does not consider issues such as trademark or copyright abuse. Instead it considers deceptive advertising laws, disability laws and laws of trespass.

Deceptive Advertising

One set of laws that is common to many countries are laws concerning deceptive advertising; that is, advertisements which are not clearly labelled as advertisements. For example, in the USA deceptive advertising is addressed by Section 5 of the FTC Act and in the UK, it is covered by The Control of Misleading Advertisements Regulations 1988.

Can laws on deceptive advertising, in some cases implemented before the invention of the World Wide Web, cover search marketing? Search marketing is simply another form of marketing. As such, it is not beyond the law. It would be foolish to expect to be operating in a multi-billion dollar global marketing industry and not expect to comply with marketing laws and regulations in the countries in which you are marketing.

In 2001, CommercialAlert filed a complaint with the FTC against search engines for deceptive advertising in the search results. The crux of the complaint was as follows:

Advertisers pay the search engine companies to have their products and services
listed "high" in or near the search results. Thus the listings look like information from an objective database selected by an objective algorithm. But really they are paid ads in disguise.

In 2002 the FTC found in favour of the CommercialAlert complaint. They used some interesting language in their response to CommercialAlert:

Thus, any Web sites or URLs that have paid to be ranked higher than they would be ranked by relevancy, or other objective criteria, should be clearly labeled as such using terms conveying that the ranking is paid for. In the staff's view, to avoid deception such labels need to convey that the sites listed are placed higher, or otherwise presented more prominently, because they have paid for their ranking or position, rather than solely based on some objective criteria relating to the probable relevance of their content to any particular search request.

The FTC had found a case for deceptive advertising when search engines were being paid to place advertisements in the search results which did not warrant their placement based on a notion of "relevancy, or other objective criteria". It was suggested to search engines that they label their advertisements and inclusion criteria more clearly. (There is some debate over whether they have done this.)

In the USA at least, then, it is possible for deceptive advertising to be present in organic search results. One method of achieving this has been established - the acceptance of a fee by the search engine in order for unlabelled advertisements to masquerade as objective search results in its listings.

Are there any other methods for the placement of deceptive advertisements in search results? Suppose that, instead of paying the search engine as in the above case, a search marketer deceived the search engine to achieve the exact same result - an unmerited placement (according to, as the FTC put it, "relevancy, or other objective criteria") of its listings in search results. Would this be deceptive advertising?

Consider this:

  • Deceptive advertising laws are designed to protect consumers.
  • In this case, consumers are searchers.
  • The searcher whom the laws are designed to protect sees the exact same result in both cases (search engine being paid or search engine being deceived) - a listing which does not merit its prominence but is instead an advertisement in disguise

It would appear that if searchers are in need of protection from deceptive advertising by search engines, then they are also in need of protection from deception by search marketers.

Is it material that the search engine is paid in one instance, and not in another? It’s not material from the perspective of the searcher that the laws are designed to protect. However, it could affect culpability. Clearly, if a search engine accepts payment for placement of deceptive advertisements then it is responsible for those deceptive advertisements. However, if a search engine is deceived by a search marketer into placing deceptive advertisements, where does the responsibility lie? At least some of the responsibility must lie with the search marketer.

In 1999, Carlos Pereira found this to his cost when the FTC halted his pagejacking scam, which deceived searchers into visiting adult sites. This case established the principle that individuals and companies, rather than search engines, can be held liable for deception in search results.

Pereira's deception was on a grand scale, presenting content that any sane objective observer would agree was irrelevant to the search term. However, the deception employed by search engines when the FTC found a case against them was much less severe. Most objective observers would agree that the content presented was relevant to the search term. The problem was that it wasn't relevant enough to warrant its position, placement or prominence in the search results, which had instead been achieved through deceptive commercial influences.

What constitutes deception of a search engine?

There are many techniques deployed by search marketers that might be called "spam" or "black hat", and might ultimately lead to a listing achieving a placement that an objective observer might state was not merited by the content they saw. However, as long as the content they saw was the same as the content the search engine saw, then these placements are achieved not by deception of the search engine, but by weaknesses in the search engine algorithm. Search engines may choose to penalise the techniques, once discovered, but the techniques do not constitute deceptive advertising per se. Unethical, unprofessional or risky, maybe - but not deceptive.

Search engines partially base their ranking algorithms on the content they think searchers will see when they visit a particular URL. Deception of a search engine involves deliberately withholding content from a search engine that searchers will see, and/or providing content to a search engine that searchers won’t see. One method of achieving this is the programming of a Web server to return different content to a search engine than is returned to searchers, where the content that is delivered to the search engine is designed to achieve a more prominent placement or presentation for the marketer than the content that is delivered to searchers would achieve. Such a technique is referred to as cloaking. However, beware - many other techniques are also commonly referred to as cloaking.

Like payment of a search engine, deception of a search engine allows freedom to place a listing anywhere in the search results. The placement does not depend on the objective ranking algorithms, which usually base placement on the content that searchers will see on the page or the links that people might follow from or to the page. Such deception is the difference between an objectively relevant search result and an advertisement. The advertisement is deceptive because it is not labelled as an advertisement. It cannot be labelled since the search engine has been deceived into placing the advertisement.

So, those search engine spamming techniques that involve delivering the same content to searchers and search engines, such as hidden text or single pixel transparent links, do not constitute deceptive advertising. However, those techniques that involve delivering different content to searchers and search engines constitute deceptive advertising if the intent and result of the technique is a preferable placement.

Does this mean that it’s OK to use some spamming techniques? No. It means that it’s not deceptive advertising. However, other spamming techniques can fall foul of other laws. These include disability laws and laws of trespass.

Disability Laws

Many spamming techniques involve subverting accessibility features (such as ALT attributes) or generally delivering content that would make little sense to a human using a screen reader (such as keyword-stuffed hidden layers). Laws in the USA and the UK require that certain sites be accessible.

In the USA, section 508 of the Americans With Disabilities Act (ADA) states that Web sites of Federal organisations must be accessible:

On August 7, 1998, President Clinton signed into law the Rehabilitation Act Amendments of 1998 which covers access to federally funded programs and services. The law strengthens section 508 of the Rehabilitation Act and requires access to electronic and information technology provided by the Federal government. The law applies to all Federal agencies when they develop, procure, maintain, or use electronic and information technology. Federal agencies must ensure that this technology is accessible to employees and members of the public with disabilities to the extent it does not pose an "undue burden." Section 508 speaks to various means for disseminating information, including computers, software, and electronic office equipment. It applies to, but is not solely focused on, Federal pages on the Internet or the World Wide Web. It does not apply to web pages of private industry.

In the UK, the code of practice for section III of the Disability Discrimination Act states that all web sites might provide accessibility features for deaf or blind users:

Provision for people with a hearing disability

5.23 For people with hearing disabilities, the range of auxiliary aids or services which it might be reasonable to provide to ensure that services are accessible might include one or more of the following:

  • accessible websites;

Provision for people with a visual impairment

5.26 For people with visual impairments, the range of auxiliary aids or services which it might be reasonable to provide to ensure that services are accessible might include one or more of the following:

  • accessible websites;

Although the word "might" leaves room for debate, it is unlikely that deliberately making a Web site inaccessible simply to make it rank higher in a search engine would be legal. There are many spamming techniques that create inaccessible Web sites. Ironically, Web sites that use cloaking-type-technology for enhanced search placement can easily remain compliant with disability laws (while at the same time falling foul of deceptive advertising laws).

Laws of Trespass

Some spamming techniques use software robots in order to create links from third party forums, guestbooks, blogs and Web stats pages. This may be illegal.

In 2000, eBay won a preliminary injunction when a judge applied trespass law to stop robots from Bidder's Edge accessing its site. Many of the arguments used in defence of Bidder's Edge centred on the idea that access to free and public information is available to everyone on the Internet. These arguments certainly could not be used to defend the creation of spam links. They failed even for Bidder's Edge. The injunction was granted, with the judge stating "eBay's servers are private property, conditional access to which eBay grants the public".

Conclusion

This article has discussed three types of laws which SEO techniques may fall foul of:

  • Deceptive Advertising Laws
  • Disability Laws
  • Trespass Laws

Though this article has mainly discussed the USA and the UK, such laws exist in many countries around the world. Techniques that may have required little thought or drawn little attention in the past, when the search marketing industry was smaller and less ised, are not appropriate for a larger, more industry.

The search marketing industry is not beyond the law.

Alan Perkins : 15/03/2005