Humans love miracles. Even if you don’t believe that Jesus turned water into wine or fed 5,000 people with five loaves and two fish, miracle cures still attract many. The 19^th century gave us snake oil salesmen whose products could cure all ills. Even today people still believe in losing weight through taking obscure supplements, or preventing illness and disease with a tablet (probably organic).

The desire for quick results was always going to appeal in the digital arena, no more so than when the Holy Grail is not shedding a few pounds but getting to the top spot on Google (organically of course). In a world where being found easily online is seen as the essential route to business success, it is not surprising that so many modern day snake oil salesmen offer their services alongside the genuine and knowledgeable. Search engine consultants offer modern digital miracles, enticing new punters with promises to get your business to the top of Google’s organic search results.

Every week I am inundated with junk email offering just this or offering to place a guest post on one of my blogs in return for a link back to their client’s webpage. Since Matt Cutts of Google pointed out last January that guest blogging had become “spammy” and was being punished by Google, guest blogging has become much less popular than it was (certainly if the number of requests I have been getting to host a guest post is any guide) and link farms seem to have been consigned to “black hat” history, as have the days of flooding pages with keywords, probably printed in the same colour as the background ”” the first, notorious, trick of the trade. Google algorithms continuously develop to hunt down these practices.

But, if the internet is a 21^st century version of the Wild West, are there any SEO ethics or regulation out there? And given that the internet straddles whole continents, let alone countries, effortlessly, how could it be possible to police these activities? Most criminal and civil enforcement is carried out by national governments, perhaps with occasional supranational co-operation: think Euro- or Interpol. Cross border enforcement of laws and rights is a very difficult area, so who would police such a system?

Legal redress

If an SEO consultant who is based in England and Wales fails to deliver promised results, it might be possible to sue them for misrepresentation or breach of contract. The former might be possible if the consultant made promises about what his/her services might achieve, but careful analysis of what was promised will be necessary and verbal promises are hard to prove and thus enforce.

A claim for breach of contract may be possible if a written contract was entered into. If so, what did it say about the service to be offered? What exactly did the consultant agree to do and what liability exclusions are there? The attention-grabbing headline might make exciting promises about what the service might offer, but how much wriggle room is there in the small print?

Excluding liability

It is possible for businesses to exclude liability in their terms and conditions, but not in all cases. The Unfair Contract Terms Act 1977 applies in B2B as well as B2C contracts (the latter case where one party is dealing as a business) and its effect is to deem certain terms either automatically unfair (for example, clauses that try to exclude liability for personal injury or death will always be unenforceable) or other exclusions will only be allowable if reasonable and within the specific categories of contract terms that it covers.

A business can exclude liability for negligence (s 3) (such as arising from misrepresentation (s 8) or from the negligent provision of the service) provided that the term is a fair and reasonable one to include in the contract, which is judged by such factors as what the parties contemplated at the time the contract was entered into, the strength of their respective bargaining positions, whether the customer knew about the term, whether they could have paid a higher price to have the contract without the term included and whether the term is common in that industry.

The cost of redress

Expert legal advice will be necessary before pursuing a claim and litigation is never an easy or cheap route for redress, even assuming the offending party has the resources to meet the judgment the claimant obtains. Changes to the civil justice system post-Jackson mean that it may be harder for individuals to fund litigation ”” many law firms are exiting civil litigation as a field of work; no win no fee deals now work on the basis that the success fee is payable by the client and not by the losing opponent.

Insurance premiums to guard against the risk of having to pay a winning opponent’s legal fees are also only payable by the client. Changes to costs rules mean not only that parties’ legal fees have to have been incurred reasonably and necessarily to pursue the dispute, but also that the costs are proportionate to the issue as well. In smaller litigation this is a significant problem because costs can quickly outweigh the value of the dispute.

The cost of bad SEO

Just how much can bad SEO practices cost your business? A disgruntled claimant may want to argue that their page ranking has dipped, even crashed, after instructing an SEO consultant to implement new practices. But, even if a causative link between the two can be demonstrated, can actual financial loss be demonstrated? If a claimant could prove that they had received no benefit at all from the contract, they might successfully argue that there had been a “total failure of consideration” and get their money back, but the facts will rarely be as black and white as that. It will be very difficult indeed to show that a drop in page ranking was responsible for a loss of business and revenue.

Many clients may not even be aware that their ranking has deteriorated, unless they scrutinise their Google Analytics account regularly. Consequently, legal proceedings may not be a viable option for redress.

An SEO charter of good practice?

The problem is not caused just by the rogues, but by the incompetent as well. As Judith Lewis, writing in the Huffington Post UK in January 2013 on “why the SEO industry needs standards (and possibly regulation)” pointed out, the problem is not necessarily caused by rogues who are out to make a fast buck, but by “unqualified, inexperienced people who have read a blog post or two and think they can ”¦ make a quick buck.”

For the lay person it is very hard to tell the difference between good and bad SEO, because the nature of the practice is so unfathomable without expert knowledge. If the SEO consultant gets it wrong (knowingly or otherwise), the results can be disastrous for their client’s website, which may be penalised by Google and actually go down in the rankings, giving exactly the opposite effect to that the client had intended when hiring in the first place.

There is a need for regulation as well as ethics in the business, but given the problem of policing the internet, perhaps a voluntary code of practice, in effect a charter of good practice, might be the way forward. It is hardly an adequate solution, as self-regulation of the press in the UK has shown over the years, but how else can the situation be moved forward, when I could choose to hire an SEO consultant in India or have my (optimised) website built in Russia? You might say that would serve me right and perhaps it would but at least it might be a step in the right direction. There would probably be no way of knowing if the SEO consultant was adhering to good practice, until it becomes obvious that the website has been penalized by Google and is going down.

Bruce Clay, a leading SEO consultant, in his proposed SEO Code of Conduct defines the objective of SEO thus:

it is not the job of SEO to make pigs fly; it is the job of SEO to genetically re-engineer the site so that it is an eagle. If you strive to make pigs fly, it is deceptive. If you put real subject matter in an expert format and place the key words in the places that clearly identify that subject, then you are enhancing the user experience and make the site actually more relevant. The Code of Conduct should encourage SEOs to work in ways that do not disguise pigs or make pigs fly. The Code should promote content improvement and clarity.

He sets out a 12-point guide to SEO ethics, which covers basic points like banning plagiarism of work, not misrepresenting abilities, education or standards of performance, not violating any laws and not acting in conflict of interest between clients.

Perhaps more obviously, but startling that it should need to be said at all, is the requirement that “All SEO practitioners will work to their best ability to increase or retain the rankings of client sites” and “No SEO practitioner will intentionally violate any specifically published and enforced rules of search engines or directories”.

If these rules need to be stated then we really are in a Wild West, where clients are left exposed and vulnerable. In the absence of any effective regulation they will remain so until such time as the users of SEO services better understand what they are getting into. And that will be a miracle.

Michael Scutt is Head of Employment and Dispute Resolution at Crane & Staples Solicitors in Welwyn Garden City. He also writes the Jobsworth blog on employment law.

Email M.Scutt@crane-staples.co.uk. Twitter @michaelscutt.

Image by Paloma Gomez on Flickr.