Working Title: White, Grey or Black Search Engine Optimisation (SEO) under the Australian Consumer Law and Intellectual Property Law.
Research Question: How can the Australian Consumer Law and Intellectual Property Law be used to regulate the White Hat SEO, Grey Hat SEO and Black Hat SEO used by SEO companies, in order to better protect consumers and small business owners?
[Audio Version] White, Grey or Black Search Engine Optimisation (SEO) under the Australian Consumer Law and Intellectual Property Law
Nowadays, more than 77 percent of internet users use Google to search for products or services. This means that approximately 1.17 billion users use Google every single day and over 3.5 billion searches are performed. These statistics suggest that over 40,000 search queries are performed every second on average and that Google performs 1.2 trillion search queries annually. Due to the economic recession, a large number of people established online businesses, as they do not require large amounts of capital to start, there is a low risk of failure and they are easy to operate and maintain. Nowadays, everyone can open online shops within a few seconds by using Content Management System ('CMS') platforms such as WordPress, Drupal, Wix, Joomla and other free CMS platforms. However, not everyone will succeed. Even though they open a fancy website, if the site is not properly indexed as a result of de-indexing, they will sell no services or products.
For this reason, Search Engine Optimisation ('SEO') companies have become a key part of ensuring the success of online businesses. Most online business owners are aware of this fact and are paying to attract more online users (web traffic) by hiring SEO experts. Because of SEO's characteristics, SEO services must be performed for at least 3 months. In general, it takes 12 months to see successful SEO results that will lead to substantial revenue increases.
There are 3 types of SEO strategies: White Hat SEO, Black Hat SEO, and Grey Hat SEO. White Hat SEO is a positive Search Engine Optimisation strategy operated by a human that improves the search engine performance on a Search Engine Result Page('SERP'). For instance, press releases, social media campaigns, article submission to the high Page Rank('PR') websites and Google AdWords Campaigns are included. In contrast, Black Hat SEO is a negative search engine optimisation strategy operated by software that do not comply with the Google Search Engine Optimisation Guideline as well as the Australian Consumer Law and the Intellectual Property Law. For instance, article submission after article spinning with a spinning tool, sending fake web traffic with software to increase the Google position and leaving spam comments on websites with auto commenting software.
In general, ethical companies will only use the White Hat SEO strategy but many SEO companies use a mixture of White Hat SEO and Black Hat SEO, which is called Grey Hat SEO. Unfortunately, there are many SEO companies that fail to reach their intended achievement within a certain period of time for many reasons. For instance, they may use software which generates spam links, implement 'Black Hat SEO' by using the software or commit a breach of Intellectual Property Law as many SEO experts are not good at law.
Although small business owners can hire a SEO company and still have poor results, a great number of them cannot be refunded for their expenses as there are few relevant laws with respect to this issue. In the near future, an increasing amount of people will start online businesses and SEO is a necessary tool to implement prior to opening. In this respect, I believe that small business owners/consumers need protection from SEO companies charging for services and not producing positive results because they do not provide the service they promise. We need online small business owners to be successful to boost the Australian economy. In this research paper, I will review and analyse the current Australian Consumer law, Australian Intellectual Property Law and Contract law. I will also suggest possible legal actions that small business owners can possibly take against such SEO companies, under the laws mentioned above, so that they can protect themselves from financial risk and damages.
This research will be completed by at the end of October in 2016.
Darren Varndell, SEO SOS: Search Engine Optimization First Aid Guide ePub eBook (Lulu Press, Inc, 2014)
Davison Mark , Ann Monotti and Leanne Wiseman, Australian Intellectual Property Law (Cambridge University Press, 3rd ed, 2016)
Fitzgerald, Brian et al, Internet and E-commerce Law (Thomson Reuters, 2nd ed, 2011)
Harry Knightm, 'Veda Advantage case clarifies Australian trade mark law on Google AdWords' (2016) 19(5-6) INTLB 366
Longden, James Alexander, 'Trade mark use and misleading advertising in Google AdWords: A comparative analysis of search engine liability in Australia and Europe' (2014) 25(1) AIPJ 35
Mahmoud, Mando, 'Invisible trademark infringement and passing off on the internet: Meta-tags, search engines, initial interest confusion and reform' (2015) 26 AIPJ 75
Paul Kallenbach and Fahim Ahad, 'Sponsored links and trade mark litigation: possible approaches in Australia' (2005) 8(8) INTLB 109
Wynne, Paula, Pimp My Site : The DIY Guide to SEO, Search Marketing, Social Media and Online PR (John Wiley & Sons, 2012)
Competition and Consumer Law Act 2010 (Schedule2 The Australian Consumer Law)
Copyright Act 1968 (Cth)
Privacy Act 1998 (Cth)
The Spam Act 2003 (Cth)
Trade Mark Act 1995 (Cth)
Trade Practices Act 1974 (Cth)
Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd (2015)112 IPR 494
Cosmetic Warriors Limited and Lush Limited v Amazon.co.uk Limited and Amazon EU SARL  EWHC 181
Interflora Inc & Anor v Marks and Spencer Plc  EWCA Civ 1403
Mantra Group Pty Ltd v Tailly Pty Ltd (No 2)  FCA 291
Tasman Insulation New Zealand Limited v Knauf Insulation Limited & Ors  NZHC 960
Paris Convention for the Protection of Industrial Property, adopted on 20 March 1883, (entered into force 27 September, 1975)
Patent Law Treaty, adopted on 1 June 2000 , (entered into force April 28, 2005)
Trademark Law Treaty, adopted on October 27 1994 , (entered into force August 1, 1996)
WIPO Copyright Treaty, adopted on December 20 1996, (entered into force May 20, 2002)
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