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The legal consequences of negative SEO

In the early days of search engine optimisation, bloggers began reporting a new phenomenon: that of SEO attacks. An SEO attack or “negative SEO” techniques are used to damage the ranking of a competitor’s website in search engine indexes in order to gain a competitive advantage.

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Search engine optimisation (SEO) consists of various techniques which are used to improve the ranking of a website on free-to-use search engines. SEO plays a central role in search engine marketing. The key aspects of SEO include using formatting, tags, link structures and specific keywords to improve the content of a webpage. In the past, SEO was used to improve a business’s website.

How negative SEO works

The aim of negative SEO is not to improve a business’s website but to gain a competitive advantage by harming a competitor’s website by ensuring it is downgraded in a search engine’s ranking. This is achieved by planting links which are ranked by search engines as “low value” on the competitor’s website. These include links to erotic and gambling websites. The links do not have to be planted on the main page of a website to harm its ranking, it is sufficient for them to be planted on secondary pages such as guest books.

Competition infringements through negative SEO

Under German competition law, negative SEO techniques used between businesses are likely to be viewed as unfair within the meaning of § 4 no. 10 of the German Unfair Competition Act. The provision prohibits business practices which are aimed at hindering a competitor. Negative SEO in this context is clearly a business activity, as it is designed to damage a competitor in order to improve the image of a business and thus indirectly contribute to increasing revenue.

Negative SEO between private individuals

The legal situation where negative SEO techniques are used by private bloggers to harm the ranking of another private blogger’s website is more complex. Germany’s Unfair Competition Act does not apply to private individuals. Instead, the intentional down-ranking of a private “competitor” should give rise to an entitlement to seek an injunction.

However, negative SEO measures do not have a direct impact on private property. Their impact is indirect. To counter a negative SEO attack, a website operator would need to demonstrate that the SEO attacker had created the impression that the operator had placed the links on the website. This position has been supported in the case law and injunctions have been granted.

Private individuals who are victims of negative SEO attacks do have legal options to defend against the attacks. However, whether such legal protection is effective is debatable. After all, once a negative SEO attack has had an impact on a website’s ranking, it can be a cumbersome task to reverse that impact. A victim of a negative SEO attack could also experience evidential problems in proving the identity of the perpetrator.

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