Web referencing disputes: analysis of recent case law and contractual solutions

Web referencing has become a major strategic challenge for companies of all sizes. However, this growing importance is accompanied by an increase in disputes between SEO providers and their clients. In recent years, French courts have had to deal with numerous disputes that reveal the areas of friction and the misunderstandings that can arise in these commercial relationships. This article analyzes the main recent case law on referencing and proposes contractual solutions to prevent these litigious situations.

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Anatomy of referencing disputes: the main sources of discord

An examination of the court decisions handed down in recent years makes it possible to identify several recurring sources of conflict between referencing providers and their clients.

The promise of specific results

The typical case pitting clients against SEO providers concerns ranking promises in search results. Many disputes arise from ambitious commercial guarantees that come up against the technical reality of referencing and the constant evolution of algorithms.

In a notable ruling by the Paris Court of Appeal of 14 March 2023, the judges recalled that a provider who had contractually undertaken to position its client "on the first page of Google" for specific keywords without qualifying this commitment as an obligation of means exposed itself to the termination of the contract in the event of failure, even if that failure was due to an update of the search engine's algorithm.

This decision confirms the importance of precisely qualifying the nature of the provider's obligations in a solid referencing contract, by favoring an obligation of means rather than an obligation of result that is difficult to guarantee in an environment as fluctuating as that of search engines.

The transparency of the methods used

Another frequent source of disputes concerns the referencing techniques used by providers. Several recent decisions have sanctioned SEO agencies for implementing controversial practices ("black hat SEO") that resulted in penalties for their clients.

The Lyon Commercial Court, in a judgment of 6 September 2022, thus ordered a referencing agency to compensate its client, who had been penalized by Google following the use of artificial netlinking techniques. The judges found that the provider had failed in its duty to advise by not warning its client of the risks associated with these practices.

This case law underlines the importance of including in your contract a clause specifying precisely the authorized and prohibited methods, as well as an obligation of transparency on the techniques implemented.

Ownership of content and technical optimizations

Intellectual property is the third major sticking point in relationships between clients and SEO providers. Who holds the rights to the content created to improve referencing? What happens to the technical optimizations in the event of termination of the contract?

The Versailles Court of Appeal, in a ruling of 21 November 2023, ruled in favor of a client who claimed ownership of the editorial content created by its SEO provider. The judges considered that the contract, although silent on this specific point, necessarily implied an assignment of copyright given its purpose.

This decision, which may seem favorable to clients, in reality creates legal uncertainty for all parties. It recalls the importance of explicitly providing for the fate of intellectual creations in the initial contract to avoid any ambiguity, just as one would for a website maintenance contract or a website transfer.

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Case studies: lessons to be drawn from recent disputes

Let us examine in more detail a few emblematic cases that offer valuable lessons for drafting your referencing contracts.

Case no. 1: The reclassification of an obligation of result

Context and decision

Company X had concluded a contract with an SEO agency that undertook to "guarantee a presence on the first page of Google for 15 strategic keywords". After six months of collaboration without conclusive results, company X stopped paying the invoices. The agency brought an action against it for payment, arguing that it had deployed all the necessary means and that the evolution of Google's algorithm had compromised the achievement of the objectives.

The Nanterre Commercial Court (judgment of 12 January 2024) ruled in favor of the client, finding that the wording of the contract unambiguously established an obligation of result that the agency had not fulfilled, regardless of the reasons for this failure.

Contractual lessons

This decision recalls the crucial importance of the terms used in drafting the objectives. To avoid this type of situation, it is recommended to:

• Clearly state the nature of the commitment (obligation of means)
• Specify that the results depend on external factors beyond one's control
• Incorporate an adaptation clause in the event of a substantial modification of the algorithms
• Provide for alternative performance indicators (traffic, conversion rate, etc.)

Case no. 2: Liability in the event of a Google penalty

Context and decision

An SME in the fashion sector saw its website de-indexed following massive netlinking practices implemented by its SEO provider. It brought an action against the latter for liability, claiming compensation for its loss of turnover.

The Bordeaux Court of Appeal (ruling of 8 March 2023) partially granted this request, finding that the provider had committed a fault by using risky methods without expressly informing its client. However, the court limited the amount of compensation, considering that the professional client could not have been entirely unaware of the risks associated with aggressive referencing techniques.

Contractual lessons

This nuanced case law underlines the importance of:

• Detailing the referencing techniques that will be used
• Formalizing the client's agreement on these methods after full information
• Providing for a regular validation process for the actions undertaken
• Including a clause limiting the provider's liability in the event of a penalty, subject to compliance with its information obligation

Case no. 3: The dispute over ownership of technical optimizations

Context and decision

A company had entrusted the technical optimization of its website to an SEO consultant. After the end of their collaboration, the provider deactivated certain technical optimizations it had put in place, causing a drop in the site's ranking. The company brought an action against it for sabotage.

The Paris Regional Court (judgment of 17 May 2022) ruled in favor of the client, finding that the technical optimizations, once integrated into the site, became the property of the client. The court considered that the provider had committed a fault by deliberately deactivating these elements after the end of the contract.

Contractual lessons

This decision highlights the importance of:

• Establishing a process for documentation and knowledge transfer
• Clearly defining the scope of the services and their permanent or temporary nature
• Providing for the transition arrangements at the end of the contract
• Distinguishing the provider's proprietary tools from the optimizations integrated into the site, in the same way as questions of software and database law

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The preventive clauses to include to avoid litigious situations

In light of this case law, several contractual provisions appear essential to secure the relationship between client and referencing provider.

Clause precisely qualifying the obligations

The first preventive measure consists of unambiguously characterizing the nature of the provider's commitments:

"The Provider undertakes to implement all the technical and human means necessary to improve the ranking of the Client's site in the natural results of search engines. This obligation is expressly qualified as an obligation of means, the Provider being unable to guarantee a specific ranking given the constant evolution of referencing algorithms and competition on the targeted keywords."

Methodological transparency clause

To prevent disputes relating to the techniques used:

"The Provider undertakes to use only referencing techniques that comply with the best practices recommended by search engines ('white hat SEO'). A detailed description of the methods used appears in an appendix to this contract. Any significant change to these methods shall be the subject of prior information to the Client and of its express agreement."

Intellectual property clause

To clarify the fate of content and optimizations:

"The text content created by the Provider as part of its assignment shall be subject to an exclusive assignment of copyright to the Client as soon as it is validated and published online. The technical optimizations integrated into the site shall remain acquired by the Client after the end of the contract. On the other hand, the analysis and tracking tools developed specifically by the Provider shall remain its exclusive property."

Clause for adaptation to algorithmic changes

To anticipate the frequent changes to the rules of the game:

"In the event of a substantial modification of the search engine algorithms significantly affecting the referencing strategy initially agreed, the Parties undertake to meet within fifteen days to adapt the action plan and, if necessary, the associated performance objectives."

The alternative dispute resolution methods to favor

Beyond preventive clauses, it is wise to incorporate amicable dispute resolution mechanisms into your contract.

Prior mediation

Mediation is a particularly suitable approach for referencing disputes, where the technical aspects and the continuity of the relationship may take precedence over the strict application of contractual provisions:

"In the event of a dispute relating to the performance of this contract, the Parties undertake to seek an amicable solution. Failing an agreement within thirty days, they agree to resort to a mediator specialized in digital disputes, appointed by mutual agreement or, failing that, by [specialized body]."

Independent technical expertise

For disputes concerning technical aspects of referencing, the intervention of an independent expert can defuse many conflicts:

"In the event of disagreement on the compliance of the techniques used or on the interpretation of the results obtained, the Parties may seek, before any legal proceedings, the opinion of an independent expert appointed by mutual agreement from among the certified members of [recognized professional association]. The expertise costs shall be shared equally between the Parties."

Prevention through the contract, the best safeguard against disputes

This recent case law underlines the crucial importance of a well-drafted referencing contract, clearly specifying the obligations of each party. The careful drafting of the clauses mentioned above is a modest investment compared to the potential costs of a dispute and its consequences for your digital strategy.

Faced with the growing complexity of referencing techniques and the constant evolution of the case-law framework, support from a digital law professional often proves decisive in securing your SEO strategy and preventing litigious situations.

By anticipating potential areas of friction and precisely formalizing the reciprocal commitments, you turn your referencing contract into a genuine tool for steering your online visibility, in the service of your commercial development.