7 replies to this topic

[Zinger]

Hi All,

This is my first post and I decided to make it based on Ian McAnerin's Copyright article in the newsletter - good one Ian. I'd appreciate your legal expertise on this.

This is the situation. A company has asked me to get an article they wrote positioned in the search engines for a company name - not theirs. They had a deal with this other company, lets call them X, but that company ripped them off. Company X had agreed to pay a substantial amount of money to my client but now are refusing.

So the client wants this page positioned so that anyone searching using the keyword 'Company X' will find this article warning them of the risks of dealing with Company X. The client won't profit from this article as it is simply detailing the agreement they had and how Company X has screwed them.

Will our company get into any trouble for doing SEO for this?

Thanks

[Jill]

Welcome, Zinger!

I'm not Ian, but I've seen a case like this before (the taxes.com case). That site wrote all sorts of nasty stuff about another company, and the other company sued them over it. I believe in the end, taxes.com was allowed to say what they said and the other company lost the case.

So you could certainly do this, but you might get sued. You might still win the case, but is it really worth it?

Personally, I believe what goes around comes around.

I'm sure Ian can discuss the legal ramifications better than I can though.

Jill

[Zinger]

Hi Jill,

Thanks for the warm welcome and swift reply.

The article is actually very professional and not heated in any way. It uses a very 'matter-of-fact' type of style. There is no 'nasty' remarks only statements and facts all describing how the deal was documented.

Its written as a warning of how company X has gone back on the agreement. I don't think company X has a leg to stand on. A third party involved with the deal is backing up my client.

How can I make sure if the poo does hit the fan that our company is not going to get in trouble?

Thanks again

[Scottie]

Welcome Zinger!

That's the risk you take when you publish something like that... even if you are right you may have to defend yourself in court. That's lost time and money, even if you win.

Is the vendetta against this company so strong that they are willing to risk going to court over it? If so, have at it!

There are plenty of examples of this practice... check out the 4th result for the term "cyberrebate". But it is risky!

[mcanerin]

Hi Zinger! Welcome!

I'd like to make the opening caveat that although I went to law school and have performed legal services for my employers in the past, I'm a lawyer (with a small "l" or even a paralegal, not a Lawyer (big "L") and not a member of any Bar. So don't go telling people "your lawyer told you this" because you really should get true legal advice from a lawyer with expertise in intellectual property law who is a member of the Bar in your neck of the woods. Laws can vary drastically from region to region. Free advice is often worth exactly what you pay for it.

Ok, with that out of the way, lets talk about some general concepts

My understanding is this: You are an independent contractor performing SEO on a client's website. The client has written a document that purports to inform others of a third party that has apparently breached a contract. You have been asked to make sure that when someone does a search on this third party that this document comes up in close proximity to or in replacment of the third parties site in order to inform potential visitors of the information in the document.

Everything complicated is basically just a bunch of simple pieces that work together, so lets break this down. I'll probably spread this over several posts to give your eyes (and mine) a rest...

First, you are not the author of the document, so your connection to this is fairly tenuous. This doesn't mean you can't be named in a suit, but it lowers the risk (unless you have big bags of money and your client doesn't). You can minimize this risk by making sure your contract has a clause like this:

The client shall indemnify and save harmless the SEO and SEO's directors, officers, employees, agents and assigns from and against all claims, actions, obligations, liabilities, damages, losses and judgements, including any incidental costs and expenses, arising out of or attributed, directly or indirectly, to the actions agreed to by the client in this agreement.

This will NOT prevent someone from suing you - since they are not the ones signing it. It allows you to recover from your client any judgments against you based on work you did under your agreement.

So step one is to protect yourself from liability as best as you can.

Of course, the best way to do that is to not do anything you could be sued for, but indemnity clauses are helpful when that's not really an option.

Ian

[mcanerin]

Step 2: Look out for Libel

Since I haven't seen the document in question I can't give any specific advice on it's likelyhood to be libel, but here are some guidelines:

Libel must be defamatory. Not insulting or rude. Defamatory means it harms the reputation of the target. In this case, the whole intent of the excercise is to harm the reputation of the target, so this is defamatory pretty much by design unless it's totally truthful or pure opinion.

This puts the client in a dangerous situation, since it's not a case of simply reporting the facts - the act of asking an SEO to place the document in proximity to the third party on SERPS indicates a certain degree of intent, and arguably malice (justifiably or not).

The only defence I can see at this point is the defence of truth. Therefore great care must be taken to make certain that everything is absolutely factual, or purely opinion (a true statement of feelings)

Examples:

"Bob is a jerk" Opinion - very vague - No problem, usually
"Bob did not pay on October 15, as specified in the contract" - Fact - no problem
"Bob is dishonest" Probably Defamation - you are coming to a conclusion and it is a negative one. It's presented as fact (it's specific) but since there are possibly many times when Bob is honest, it would be difficult to prove truth.

Your client would likely be in trouble if they presented a conclusion based on the facts in the document.

If it was just a laundry list of facts like how a police officer would give a report, and all the facts were true and could be backed up, then you would probably be ok.

But if it goes something like:

"Don't do business with these guys because they ripped us off and likely will rip you off too! Here's some facts...."

Then you've made a conclusion and are likely a target for a defamation suit as soon as it's presented to a third party (in this case, the internet at large).

Since writing "These guys are jerks" is unlikely to be the approach your client is taking, you are in the fact area. I'd avoid putting in any opinions at all, since it would be very hard in practice to not make most opinions in this case sound like conclusions.

Just present a list of facts like you would for a court. Then give it to a lawyer to make sure it really is facts, and not factual sounding opinions (one of the worst things you can do).

Ian

[mcanerin]

Step 3: The Trademark and Copyright Issue

The next potential issue is that in order to make sure this document shows up for the third parties search criteria, you will likely need to make use of a trademark of theirs, if only to put into the copy for comparision purposes.

As you can imagine, making a negative statement about someone while using their own tradmark in order to facilitate the publication (in this case in the SERPs) of the statment is unlikely to be a popular move in the eyes of that person.

So you'll probably get accused of trademark or copyright infringment.

There is, of course, a defence. It's not perfectly defined on the internet yet, but it's getting there. We've got an interesting thread going on about some companies who are bidding on the names of competitors and the lawsuits it has generated.

In this case, you probably have a good case for fair use, since you are not passing off goods as if they were a competitors, but rather using the trademark for informational purpose. Remember, though, that arguing that your motives are not commercial could be attacked by saying that if the pressure of the publication forces the third party to pay you, then you are changing the status quo to your own benifit.

Since your motive and information here are purely news reporting, you should be ok. It IS only news reporting by this time, since hopefully you've completed Step 2 and put together a purely factual document.

This is a hard one, on the surface it looks very straightforward, but an SEO's ability to manipulate the SERPs to a degree changes the dynamic here a bit. I'd certainly make very sure that the title and description of the document were very, very clearly NOT the third parties site.

Ian

[mcanerin]

Finally,

You have probably noticed by this time that I haven't been able to give you a definitive "yep, it's ok" or "oh god, don't do that"

Most of the reason is that it depends on the document. It's very likely your client will get sued - which may be a good thing. Once you have been sued you have a legal right to defend yourself, and it's usually the plaintiffs job in these cases to prove their point before you have to say anything in return. This may put you in a good position, depending on the strength of your case. Or it could put you in a very bad position.

It comes down to this. By posting the document, you are raising the stakes. When you raise the stakes, don't be surprised if things get hot and heavy really fast, regardless of the legitimacy of the initial case.

One final note.

I'm very concerned about this plan. If the case was so obviously clear and based on factual data, then why hasn't your client successfully sued the third party in court? If they have been unable to prevail in the courts, then taking this to the internet is likley to double the level of failure, and drag your company in with it.

The motivation here seems suspicious, given the limited facts I have. I strongly encourage you to check into the facts completely and thoroughly. And make darn sure you have them sign the indemnity clause before you do anything else. If they won't sign it, run away fast.

I suppose that there may be legitimate cases where going to court is not practical or overly expensive (if the third party is in a foriegn country, for example), but do yourself a favor and make sure you don't end up with the short end of the stick. Get everything in writing.

The fact that you came here to ask about this indicates you may have some reservations. Make sure that you do a good gut check on the clients motivations.

If it turns out after all, that truth and justice are on your side, then stick to the facts and publish away. But the onus is on you and your client to make sure truth and justice IS on your side.

Good luck!

Ian

Edited by mcanerin, 30 October 2003 - 03:49 AM.